Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to: The rights of adopted children
Any decisions made by the courts or the Department of Child, Youth and Family Services involving children and their care will put the needs of the child first. Accordingly, a child who has been adopted has certain important rights.
Adopted children have the same rights as natural children
Adopted children have the same rights as natural children and the same claims on their adoptive parents' estate. For example, if a child's adoptive parent dies without leaving a will (dying "intestate") the rules governing what happens to the parent's property will apply to that child just as they would apply to natural children.
Deciding on suitable adoptive parents
Most adoptions are arranged by the Department of Child, Youth and Family Services, but some are arranged by private organisations.
The child's consent to the adoption is not required, regardless of how old he or she is. However, the adopted child's wishes will be considered when the court considers whether the adoption will promote the child's welfare and interests. The child's age will be a factor in determining how much weight to give his or her wishes.
It is the Department's belief that adopted children have the basic human right to know that they are adopted. This is contrary to the "clean break" approach of the past. In assessing the eligibility of prospective adoptive parents it seems that the Department must be satisfied that the parents will at some point tell their child that he or she is adopted.
Adult adopted person's right to original birth certificate
An adopted child's birth certificate contains only the names of the adopted parents, as they are deemed to be the legal parents. If it is agreed to by the adoptive parents, a child may keep his or her natural last name.
However, once a child turns 20 he or she may apply to the Registrar-General of Births and Deaths for an original birth certificate. The Registrar-General must notify the adopted person of the counselling services that are available. If the adopted person then indicates that he or she does wish to attend counselling, the birth certificate is sent to the relevant counsellor or counselling organisation, and the adopted person can then obtain it from that counsellor or organisation.
If the adopted person doesn't notify the Registrar-General that counselling is desired, the adopted person is notified that the birth certificate is being kept on his or her behalf and is then sent to the person if he or she makes another request for it.
Vetoes by birth parents for adoptions before 1 March 1986
If a child was adopted before 1 March 1986 the birth parents may register a veto (an "endorsement") to prevent the child tracking them down. Therefore if an adult person adopted before that date applies to the Registrar-General for an original birth certificate, and the birth parents have entered a veto, the Registrar-General must send the applicant the birth certificate with all details concerning the birth parents removed. The veto lasts for 10 years, but can be extended.
The birth parents have no right to register a veto if the child was adopted after 1 March 1986.
Adopted person aged 19 or over can veto contact from birth parents
The birth parents also have the right to find out about their natural child, but this is subject to the adopted person's right to register a veto against contact. An adopted person who has turned 19 can request the Registrar-General to register a veto on the original birth certificate if he or she does not want to be contacted by the birth parents or by a particular birth parent. The Registrar-General must notify the adopted person that counselling is available, but if no counselling is requested or if the person still requests the veto after attending counselling, the Registrar-General must enter the veto. The veto lasts for 10 years, but can be extended.
- An adopted child cannot claim on the estate of his or her natural parents. This can only happen if there is provision made for the child in a natural parent's will.