Adoption Regulations 2008

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REGULATORY IMPACT STATEMENT

Adoption Regulations 2008

December 2007

This Regulatory Impact Statement has been prepared in accordance with the requirements of the Subordinate Legislation Act 1994. Its purpose is to inform interested parties regarding a proposal to make new regulations. Comments are invited and should be addressed to...by...

Prepared for the Department of Human Services by

Jaguar Consulting Pty Ltd

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Summary

The proposed regulationsare made under the authority of the Adoption Act 1984. They are intended to replace, with limited amendments, the existing Adoption Regulations 1998, which will sunset on 24 February 2008.

The proposed regulations will constitute the principal regulations made under the authority of the Act. The primary objective of the regulations is to ensure the care and protection of children who have been relinquished for adoption within Victoria or who are available for adoption in overseas countries and will be adopted by Victorian couples.

In pursuit of this objective, the regulations make provisions in respect of

agencies seeking approval to act as adoption agencies, in respect of intending adoptive parents and in respect of parents considering relinquishing their children for adoption. The major provisions of the regulations are as follows:

Adoption agencies are required to provide a range of information to allow an effective assessment to be made of their capacity to provide a high level of service, having regard to the primary objective of child welfare and to ensuring that the rights of adoptive and relinquishing parents are respected. The

regulations also establish qualifications requirements for the chief executive of adoption agencies.

Adoptive parents are required to meet a range of criteria established in the regulations in order to establish their fitness to become adoptive parents.

Relinquishing parents are required to be provided with counselling and with a range of information, set out in the regulations, in order to ensure that they are fully aware of the available alternatives to adoption, that they understand the implications of relinquishing their child for adoption and that they understand the rights that they do retain in respect of their children and are able to exercise them.

The regulations also include requirements in respect of the keeping of an adoptions register and the provision of birth certificates.

The proposed regulations make a limited number of changes to the substance of the 1998 regulations. In particular, there have been a number of changes to the specific requirements for adoptive parents, while the declaration of the Peoples Republic of China as a “prescribed overseas jurisdiction” will sunset in 2009 as a result of China’s signature of the Hague Convention. In effect, this will mean that all future adoption arrangements undertaken with China will occur pursuant to the terms of the Convention.

An assessment of the expected benefits and costs of the proposed regulations has been undertaken. It is estimated that the costs of providing adoption

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services is approximately $1.5 million annually, or $12.2 million in present value terms over the expected ten year life of the proposed regulations. This cost is borne entirely by government, which funds some adoption services within government and also provides funding to external adoption agencies which is intended to cover fully the costs they incur in providing adoption services. It should be noted that only a minority of this total cost of providing adoption services can be regarded as directly attributable to the regulations: a larger proportion would be attributable to the Adoption Act itself, while a significant proportion of this cost would be borne in any case, regardless of whether the provision of these services was regulated.

The second major cost identified is the cost of the time taken by intending adoptive parents to comply with the requirements of the regulations. This involves the provision of information, conduct of certain practical exercises, attendance at interviews and other requirements. These time costs have been estimated as having an annual average value of approximately $150,000, equivalent to $1.3 million in present value terms over ten years.

These costs are considered to be very small in relation to the size of the

benefits that arise as a result of having a well-regulated adoption industry. The major indicator of good practice that is generally used in this area is that of the rate of breakdowns of adoption placements. Victoria continues to have a very low rate of breakdown of adoption placements: no breakdowns of local infant adoption placements have been recorded during the life of the current

regulations, while the breakdown rate in respect of intercountry adoptions over the same period has been below one per cent.

Given this performance, it is considered that the benefits of the proposed regulations will substantially exceed the costs that they impose.

Consideration of the range of regulatory and non-regulatory policy tools has been undertaken as part of the RIS process. It has been concluded that there are no feasible alternatives to the making of the proposed regulations. The basis for this conclusion is discussed in Section 6. However, given this conclusion, and the general purposes of the RIS process, input and

contributions from relevant stakeholders regarding ways in which the regulatory and administrative burden of the proposed regulations could be reduced would be welcomed

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1. Nature and extent of the problem

1.1. Background – adoption and permanent care

The proposed regulations are intended to replace the Adoption Regulations 1998, which will sunset in February 2008 as a result of the operation of the Subordinate Legislation Act 1994. The Adoption Regulations 1998 are the principal regulations made under the authority of the Adoption Act 1984. The Adoption Act establishes the legislative framework for adoption in Victoria. It makes provision for a wide range of matters connected with adoption,

including establishing requirements for the approval of adoption agencies and of adoptive parents. The Act regulates both local and inter-country adoption. However, its provisions in respect of inter-country adoption are required to be consistent with the terms of the Hague Convention on Intercountry Adoption1, to which Australia is a signatory.

The proposed regulations set out information provision requirements in relation to both adoption agencies and adoptive parents, in order to allow the

assessments required under the Act to be completed effectively. They also set out procedures for obtaining consent to adoption from biological parents. The regulations do not establish the fees payable in respect of inter-country

adoptions. These are established via the Adoption (Inter-Country Fees) Regulations 2002.

Adoption is one of a number of permanent care options available in Victoria. Permanent care is defined as an arrangement whereby a child or young person is cared for on a permanent basis by someone other than their biological

parents. Permanent care arrangements are made when biological parents are either unwilling or unable to care for their own children. Permanent care arrangements are normally established by some form of court order which transfers parental rights and responsibilities to the permanent caregiver. Three types of permanent care arrangements can be distinguished:

• Adoption: Adoption orders are made pursuant to the Adoption Act 1984. Adoption arrangements may include arrangements under which

information about the adopted child is provided to the biological parent. In addition, arrangements can be made for ongoing contact to be maintained with the biological parent and/or with relatives.

• Permanent care: Permanent care orders are made pursuant to the Children, Youth and Families Act 2005. This usually occurs after the child has been subject to protective intervention by the Department of Human Services and follows a determination being made that the child’s

1

The full text of the Hague Convention on Intercountry Adoption is available at:

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biological parent is not expected to be able to care adequately for the child in the foreseeable future.

• Orders under the Family Law Act 1975: various orders may be made under this Act, relating to issues including with whom a child lives, with whom a child has contact, and specific issues such as who is

responsible for decisions regarding the child’s day to day and long term care.

In each case, the making of a court order formally recognises permanent carers’ responsibilities and rights with respect to the children that are the subject of the order.

The Adoption Act 1984 regulates both the adoption of children in Victoria and children in other countries who are available for adoption by Victorian parents. Adoption services in Victoria are provided by a combination of government and community sector agencies. Policy direction is set by the Department of Human Services.

The provision of adoption services is essentially organised on a regional basis. Services in four regions are provided directly by DHS. These are Hume

Region, Eastern Metropolitan Region, Barwon South West Region and the Northern part of North and West Region.

Non-government agencies provide services in the remaining regions. Anglicare provides services in Gippsland Region and North and West Region, while Child and Family Welfare Services Ballarat, St Lukes Anglicare, and Connections provide services in Grampians, Lodden Mallee and Southern Metropolitan regions. In addition, Centacare Catholic Family Services provides a statewide adoption service.

These non-government providers are not for profit social welfare agencies. The provision of adoption services is one among a wider range of welfare and related activities they provide.

The Intercountry Adoption Service (ICAS) is a statewide DHS service which arranges adoptions of children from overseas by adoptive parents in Australia. Children requiring adoption placement can be broadly divided into four

categories:

1. Infant adoption: children aged 0 - 1 year, born in Victoria.

2. Special needs adoption: babies and older children with emotional, physical or intellectual disabilities.

3. Spouse adoption: children in stepparents situations where one spouse wishes to adopt the child of a previous relationship of the other spouse.

4. Intercountry adoption: infants and children born outside Australia who have entered Victoria for the purposes of adoption.

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1.2. Incidence of adoption in Victoria

The number of adoption in Victoria is currently very low. It has declined substantially over several decades, reflecting both changing social attitudes and changes in a wide range of relevant public policy positions. According to the Australian Institute of Health and Welfare (2006, p 32):

A range of medical, social and legislative factors have contributed to this trend. The availability of more effective birth control, together with the emergence of family planning centres and sex education classes, have had a substantial impact in reducing the number of unplanned and unwanted pregnancies (ABS 1998). In addition, decreasing fertility rates may reflect a general change in individual preferences and social trends with regard to raising children.

Changing community attitudes towards single parenthood and increased levels of support available to single parents have also reduced the

pressure on unmarried women to give up their children for adoption. This coincides with an increasing number of women in the workforce and more affordable and accessible child care facilities, further improving women’s ability to support a family on their own (ABS 1998).

The decline in the incidence of adoption appears to be continuing, as indicated in the data contained in Table 1. Table 1 shows that the average number of local infant adoption placements (i.e. children placed with approved applicants other than family members) has averaged 18.2 per annum over the last five years, whereas it averaged 37.6, or more than twice as many, in the five years to 1994/5. As recently as 1972, 1,529 infant adoption placements were made. Thus, the number of such placements has declined by about 50% in the last decade and by almost 99% in 35 years.

The total number of local adoption orders (i.e. including children adopted by step-parents) also shows a substantial declining trend, with the average number per year being 29 in last five years, or little more than one quarter of the average of 104.4 recorded in the five years to 1994/5.

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Table 1: Adoption statistics YEAR INFANT ADOPTION PLACEMENTS* LOCAL ADOPTION ORDERS# ICAS Placements ICAS Adoption orders 1990/91 60 153 36 105 1991/92 31 118 53 67 1992/93 29 64 42 37 1993/94 29 82 48 30 1994/95 39 105 62 59 1995/96 27 74 59 57 1996/97 23 67 57 56 1997/98 27 51 47 64 1998/99 32 43 70 59 1999/00 20 46 60 76 2000/01 15 38 45 60 2001/02 15 36 94 74 2002/03 21 23 115 59 2003/04 10 34 110 86 2004/05 17 29 122 132 2005/06 16 27 122 104 2006/07 17 32 68 95 TOTAL 428 1022 1210 1220 Notes:

1. * Shows the number of children placed with approved adoption applicants 2. # Includes children adopted by stepparents

In addition to local adoption orders, ICAS arranges adoptions of children from other countries by adoptive parents in Victoria. Overseas adoption

arrangements occur either under bilateral government-to-government arrangements or under the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, and the program works with a number of different countries. Intercountry adoptions rose from

approximately 20 per year in the early 1980s to around 60 per year a decade later. Having remained relatively stable throughout the 1990s, the number of children adopted from overseas has increased significantly in recent years, more than doubling from 60 in 2000/01 to 132 in 2004/05. This increase is due largely to adoptions of children from China, a program established by Australia in 2000.

Since 2004/05 there has been a decrease in the number of children placed from overseas due to the closure of the Korean program and changes in applicant eligibility in China. It is expected that the numbers of children adopted in Victoria, and Australia, from overseas will plateau over the next several

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years. As the above data indicate, the majority of adoptions made in Victoria currently relate to overseas children.

1.2. Risks associated with adoption

The Adoption Act, and hence the proposed regulations, are fundamentally concerned with safeguarding the welfare of children. Section 9 of the act states:

In the administration of this Act, the welfare and interests of the child concerned shall be regarded as the paramount consideration

Adoption is an emotional process which is fundamentally related to concepts of the family unit as the primary organising structure in society. Consequently, there are clear risks involved, not only for adopted children, but also for both relinquishing parents and adoptive parents if the decisions made in relation to a child are not carefully considered.

Risks to adoptive children

The major concern in relation to adoptive children is to ensure that they are placed in family situations which are best suited to their needs and are free of emotional, physical and sexual abuse. Over many decades, the number of prospective parents seeking to adopt children has substantially exceeded the number of children available for adoption. It has been long recognised that risks to the welfare of adoptive children may arise from this situation. For example, in his second reading speech upon the introduction of the Adoption of Children Act 1964, the then Chief Secretary, Arthur Rylah, stated:

“The Bill seeks to discourage what has become known as "baby farming" by providing heavy penalties for trafficking in children for adoption and in the arrangement of adoptions. For many years now in Australia the demand for children for adoption has exceeded the supply of children available, and, naturally enough we have people who are exploiting the shortage to their own advantage.... as a further break upon malpractice, the bill limits the right to arrange adoptions other than "family adoptions" to qualified and experienced people namely, the Director-General of Social Welfare, the private adoption agencies and their respective staffs."

Legislative protections designed to ensure the suitability of adoptive parents can be traced back significantly further than this, with the first such legislation in the United Kingdom being adopted in the 1930s, when amendments were made to the Adoption of Children Act 1926. In addition to seeking to eliminate financial abuses and minimise inappropriate placements, these controls also sought to ensure that adopted children had similar legal rights to those

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biological children2. Victorian legislation in relation to adoption was first adopted in 1928.

Intercountry adoption

Intercountry adoption gives rise to additional complexities in ensuring that the welfare of adoptive children is safeguarded. The number of intercountry adoptions has risen significantly in the post-World War II period. The initial focus of intercountry adoption was on meeting the needs of "war orphans". However, intercountry adoption has become increasingly popular with couples seeking to create a family as the availability of children for adoption in Western countries has diminished.

In Australia intercountry adoptions are a relatively recent development. The first public experience of intercountry adoption occurred in 1975 with the Vietnam airlifts which brought 292 children to Victoria. Since then Australia has entered into a number of arrangements with countries in Asia, Europe, South America and Africa.

A particular issue in relation to intercountry adoption is to ensure that the children in question are legitimately available for adoption. Historical experience has demonstrated that, in some cases, children have been abducted and sold to adoptive parents. A 1994 inquiry by the New South Wales Law Reform Commission found that some South American and Asian countries that had high rates of legitimate intercountry adoption also

experienced high rates of child abduction and sale. Contributing factors were identified as:

"...poverty, ineffective legislation and bureaucracy in donor countries, [together] with money and desperation for children in receiving

countries"3.

Given the nature of this problem, data on its extent are, unsurprisingly, largely absent. However, widespread international concern over the dangers to child welfare posed by intercountry adoption has arisen over time and has led to the development of the Hague Convention on the Protection of Children and

Co-Operation in Respect of Intercountry Adoption, which wasconcluded at the

Hague in May 1993 and entered into force on 1 May 1995. Australia ratified the convention on 1 December 1998 . Many intercountry adoptions now take place within the framework established by the convention. That said, some bilateral arrangements or agreements for intercountry adoption continue to exist outside of the Convention. These bilateral arrangements and agreements govern the adoption by Australians of children from countries that have not yet ratified the convention. Australia's status as a signatory to the Hague Convention

effectively requires that all regulation made in respect of overseas adoption must be consistent with the provisions of that convention.

2

See Ball, C. (1996) Adoption: A Service for Children? Adoption and Fostering, Volume 20, No. 2.

3

New South Wales Law reform commission (1994): Review of the Adoption of Children Act 1965. Discussion paper No. 34.

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Risks for relinquishing parents

Parents considering relinquishing their children for adoption are making a complex, highly emotional and far-reaching decision. To the extent that the adoption legislation and regulations are concerned with relinquishing parents the major objectives are to ensure that they are provided with appropriate information and counselling that will enable them to be fully informed on the relevant issues surrounding the decision that they are making. In particular, this includes:

• Alternatives to adoption. Information must be provided on support

services that are available in the event that they choose not to relinquish their child for adoption.

• The implications of adoption. Relinquishing parents must fully

understand the implications of having their child adopted, including the fact that they are permanently relinquishing legal guardianship of the child and all parental rights.

• Rights of relinquishing parents. Relinquishing parents must be informed

of their right to express wishes regarding the race, ethnic background and religion of the adoptive parents with whom their child will be placed, and that they may choose to continue to receive information about the child and to have contact with the child.

• The Hague Convention on the Protection of Children and Cooperation in

Respect of Intercountry Adoption sets out the requirements that countries of origin must comply with in relation to working with birth parents.

Risks for adoptive parents

Two significant considerations can be identified from the point of view of prospective adoptive parents. Firstly, the legislative structure is concerned to ensure that adoptive parents fully understand the nature of the responsibilities they are undertaking and that they have the personal and financial resources required to ensure that there is a high probability that they will be able to

establish a successful, functional family with the adoptive child at least until the child reaches social and emotional independence. Clearly, an unsuccessful family relationship has substantial personal costs for the adoptive parents as well as for the children involved.

Secondly, aspects of the regulations regarding birth certificates and related matters are concerned, in part, to ensure that the legal status of the adoptive parents in relation to their children is clearly and unambiguously established.

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2. Objectives of the proposed regulations

The primary objective of the proposed regulations is to ensure the care and protection of children who;

• have been relinquished for adoption in Victoria;or

• are legally available for adoption outside Australia and have been admitted to Victoria for adoptive placement by the Inter-country Adoption Service of the Department of Human Services.

The Adoption Act and Regulations set out to ensure that the rights of all parties to an adoption are protected by supporting the establishment of high practice standards and appropriate processes and procedures.

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3. Nature of the proposed regulations and the

proposed enforcement regime

The proposed regulations will replace the current Adoption Regulations 1998 with very limited amendments. This section is therefore divided into two parts. The first part summarises the substantive elements of the proposed regulations by setting out the main impacts of the regulations on each of the identified affected parties. The second part highlights the main differences between the existing and proposed regulations. A copy of the regulations is attached to this Regulatory Impact Statement (RIS) as Appendix 1.

3.1. Explanation of the expected impact of the regulations

The proposed regulations affect adoption services and adoption counsellors, persons applying to adopt children, parents relinquishing children for adoption and children being adopted. The following briefly summarises the main impacts of the regulations on each of these groups.

3.1.1. Adoption agencies

Part 2 of the regulations specify information that must be provided to the Secretary of DHS in order for a decision on an application for approval as an adoption agency to be made. Information requirements are established in respect of three different types of approval, relating to adoption agencies

generally, agencies dealing with overseas adoptions and agencies dealing with adoptions that are pursuant to the Hague Convention4. In addition, Part 2 specifies that nominated principal officers must have tertiary qualifications in social work or social science and have relevant experience.

The required information is wide-ranging and includes information on the governing body of the organisation, its rules or articles of association, its proposed financing, its reason for wishing to become involved in adoption and its links with other child/family welfare agencies. Information is also required about facilities, staffing and their qualifications, training arrangements for staff and the geographical area in which the agency intends to operate.

Applicants for approval as providers of intercountry adoption services must also demonstrate that they have approval to operate in the relevant countries (as specified in their application). They are also required to satisfy the Secretary that they are able to meet certain criteria for the provision of appropriate

4

Most countries from which children are adopted by Australian adoptive parents are parties to the Hague Convention. Thus, these provisions apply to agencies processing adoptions of children from those signatory countries.

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adoption services, including ensuring that exploitation of children or relinquishing parents does not occur.

Accredited bodies in respect of Hague Convention adoptions must also certify that they have appropriate accommodation available and that they are not involved in aid distribution activities in the relevant countries. They are also required to be not-for-profit organisations. Agency staff are also required to conform to a code of conduct, set out in a schedule to the regulations.

3.1.2. Relinquishing parents

Part 4 of the regulations deals with consents to adoption. Approved counsellors in Victoria are required to provide a range of information to relinquishing parents prior to them finally deciding to relinquish a child for adoption5. This information relates to adoption processes generally, including the effect of an adoption order, and specific issues relating to giving consent for a child to be adopted. Information on support services in the community must also be provided.

Relinquishing parents are required to be given an opportunity to express their wishes concerning the religion, race, or ethnic background of proposed

adoptive parents and as to whether they wish to receive notice of certain events relating to their child. A consent to adoption form is specified in a schedule to the regulations and various procedures are specified.

Specific additional provisions are established in relation to Aboriginal children, including provisions to ensure that the child’s contact with the aboriginal community is maintained following the adoption.

3.1.3. Children awaiting adoption

Part 5 of the regulations establishes requirements regarding the care of children awaiting adoption. It ensures that birth parents give fully informed consent when they authorise the Secretary or Principal Officer to exercise rights of custody over a child before consent to adoption is finalised and guardianship is transferred to the Secretary or Principal Officer

3.1.4. Applicants for adoption

Part 6 of the regulations establishes requirements in relation to persons

seeking to adopt a child. In particular, it sets out the qualities to be assessed in such persons, including:

· their emotional, physical and mental health,

5_{The Secretary is required to keep a register of approved counsellors, which is to be made} available to adoption agencies.

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· their age, and maturity

· their skills and life experience · their inancial circumstances,

· their general stability of character, including any criminal history · the stability and quality of the relationship between the applicants and

between the applicants and other family members,

· the criminal records and history (if any) of household members · their capacity to provide appropriate support to the maintenance of a child’s cultural identity and religious faith (if any)

· their capacity to support contact and exchange of information with a child’s birth parent and family

· their capacity to provide a stable, secure and beneficial emotional and physical environment during a child's upbringing until the child reaches social and emotional independence.

As well, where an applicant has had the care of a child before applying for approval as a fit and proper person to adopt a child, an assessment is to be made as to whether he or she has shown an ability to provide such an environment for the child.

Schedules to the regulations set out a range of information about the applicants that is required to be provided to the Secretary or Principal Officer before they can be approved as fit and proper persons to adopt. This information relates to the demonstration of the above qualities.

3.1.5. Other

Part 6 of the regulations sets out requirements relating to the keeping of a register of adoptions, while Part 7 deals with the provision of birth certificates in respect of adopted children. Part 8 of the regulations sets out other general matters, notably providing the Secretary with the ability to provide financial assistance to adoptive parents.

3.2. Substantive differences between the existing and proposed

regulations

The proposed Adoption Regulations 2008 are very little changed from the Adoption Regulations 2007.

The provision regarding the People’s Republic of Chinaas a prescribed overseas jurisdiction has been given a sunset date 1 January 2009. By this time all adoptions of children from China made under prescribed overseas

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jurisdiction arrangements will have been finalised, and all future adoptions will occur until the Hague Convention.

Regulations 11 and 16 have been changedto clarify that two lists of approved counsellors must be maintained, that the roles and functions of the two sets of counsellors are different, and that approval to undertakeone roledoes not entail approval to undertake the other role.

Regulation 36 has been changed to incorporate current approaches and understandings in adoption. They reflect current practice regarding the

continuing role of the birth family, a greater understanding of the importance of cultural background issues for children, and of the need to ensure adoptive placements provide stability for children. The need to protect children is reflected in the requirement to consider any criminal history of all household members. These provisions clearly spell out the range of factors relevant to whether persons are fit and proper to adopt a child.

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4. Expected costs of the proposed regulations

4.1. Costs borne by DHS

Local adoption related activities are undertaken either by DHS regional offices or a range of approved adoption agencies in the non-government sector. However, the costs of these activities are essentially borne by DHS. The following tables summarises adoption related funding allocations within DHS and from DHS to approved adoption agencies for 2006/07.

Table 2: Funding of adoption-related activities – 2006/07

Connections $99,748 Centacare $105,465 Sub-total $378,173 Overseas Adoption InterCountry Adoption Service (ICAS) $1,087,601 Total $1,465,774

Table 2 shows that the estimated total funding in relation to local adoption activities was $378,173 in 2006/07, while funding for the Inter-Country Adoption Local DHS adoption

service

Funding

Hume Region $10,761

Eastern Region $36,173

Barwon South West Region

$14,172 Northern PC team $25,762 Local Adoption agency

Anglicare Gippsland $25,835 Anglicare Western $20,126 Child and Family

Services Ballarat

$29,763 St Lukes Anglicare $10,368

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Service was a further $1,087,601. This, total funding for all adoption related activities in Victoria was $1,465,774.

The costs of adoption related activities will clearly be increased to some extent by the provisions of the act and the current regulations. The legislative

structure will increase these costs to the extent that it requires agencies to undertake adoption related tasks in ways other than those that they would voluntarily choose to do and at higher cost.

Thus, the effective cost of the legislative structure governing adoption, taken as a whole, will be some fraction of this total. Based on DHS’ extensive dealings with the non-government sector adoption agencies, it is believed that they would generally adopt a high level of professional practice even in the absence of formal legislation. This implies that the effective impact of the legislative structure in increasing agency costs is likely to be quite small.

Moreover, much of the substantive impact of the legislative structure is

established in the act. It follows that, whatever impact the legislative structure as a whole has in increasing agency costs, only a minority of this cost increase can be attributed to the existing regulations.

As the proposed regulations will make few substantive changes to the existing regulations, it is believed that they will be no material increase in the costs incurred by adoption agencies under the existing regulatory regime.

Finally, it should be emphasised that, as the adoption related activities of the non-government sector agencies are effectively funded by DHS, the final incidence of the costs imposed by the regulations lies with government, rather than the private, or voluntary sector.

4.2. Costs borne by applicants to be adoptive parents

Applicants pay fees in respect of their applications only in the case of inter-country adoptions. As noted above, these fees are not imposed by the Adoption Regulations and so are beyond the scope of the current RIS. However, the application process imposes substantial time costs and some probable out of pocket costs on applicants. The major steps in the application process are detailed below, along with estimates of the time taken to complete each step.

4.2.1. Time taken to complete application process requirements

1. Initial information session

Applicants attend an Information session of about 2 hours, which provides information about the adoption process and explains the information required from applicants, and the reasons for this information. Applicants are able to use this session to have their questions answered.

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2. Education/training sessions:

Applicants for local adoptions attend two, one day education sessions, while applicants for intercountry adoptions attend three, six hour sessions.

These provide information about a range of issues in adoption, including their motivation ot adopt, the reasons children are available for adoption, the impact on the child of being raised away from the biological family and issues for parents raising a child to whom they are not biologically related. Sessions also include discussion of the role of ongoing access and information exchange with the birth family.

In addition, applicants for intercountry adoption receive information on the country from which they are likely to be allocated a child, and issues involved in raising children from a different racial and/or cultural background who has been placed from an overseas country.

In addition, these education sessions are intended to assist applicants to understand what information they will be required to provide during the

assessment process, what steps are involved in the process and the purpose of each of the steps and information requirements.

3. Country information session (Intercountry adoptions)

Applicants to adopt a child from overseas attend a six-hour country information session, regarding the country they plan to adopt from.

4. Country report (Intercountry adoptions)

Applicants to adopt a child from overseas are also required to prepare a written country project. This is intended to be a means by which they can develop a deeper understanding of the country from which they are expecting to adopt a child. While some applicants choose to conduct considerable research in completing this task, it is estimated that approximately eight hours are required in order to complete the country project to an acceptable standard.

5. Documents to be provided.

Applicants are required to provide a range of information about themselves to assist in the assessment process, as follows:

• Application form: this includes a range of identifying information, a financial statement and information on other children in their family (if any). This is estimated to take two hours to complete, on average.

• Medical report. The applicants must provide detailed information on

their health (historical and current) and a completed medical report, part of which is completed by them and the remainder by their medical practitioner. It is estimated that this step takes an average of two hours, including attendance at a long GP consultation.

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• Life story: Applicants are also required to complete a detailed "life story" covering their personal histories, family relationships, formative life experiences, their views on family life, and their strengths. The life story is used as as basis for discussion during the series of interviews which makes up the assessment process. Applicants are provided with an outline of a life story format to assist them, and can check in with the adoption service along the way as they prepare the document. It is estimated that completion of the “life story” takes an average of eight hours.

6. Interviews

Each applicant must also undergo a number of interviews, both individually and as a couple. Interviews occur both in the offices of the adoption agency and the applicant’s home. They are wide ranging and intensive and build on the information provided in the life story. The assessment forms the basis of the decision regarding the applicants’ suitability to adopt. The process is open and interactive, and applicants are encouraged to explore their own suitability and reach an understanding of how they would function as adoptive parents in both the short and long term.

On average, there are four interviews conducted per applicant, each having duration of about three hours. Thus, this stage of the process requires twelve hours of the applicant’s time, on average.

Time requirements are much less for step parent applications, as these do not require attendance at Information or Training sessions, or the preparation of a Life Story. They require medical checks, and assessment interviews with the custodial parent and partner, relinquishment interviews with the non custodial parent, and with the child depending on age.

Table 3, below, shows the average total time input per applicant to complete these stages of the process.

Table 3: average time input per applicant: local and ICAS adoptions

Requirement Average time

local infant adoption Average time step parent adoption Average time intercountry adoption Initial information sessions 2hrs 0 hrs 2 hrs Education/training

sessions

16hrs 0 hrs 18 hrs

Country info session (ICAS only)

0 hrs 0 hrs 6 hours

Country report (ICAS only) 0 hrs 0 hrs 8 hrs

Document preparation 12 hrs 4 hrs 12 hrs

Interviews 12 hrs 8 hrs 12 hrs

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Table 3 shows that the average time taken per applicant to complete these requirements of the regulations is 42 hours in the case of local infant

adoptions,12 hours for step parent adoptions and 58 hours in the case of inter-country adoptions.

The implicit value of this time can be estimated by reference to average post-tax earnings, given the general assumption of economic analysis that people make trade-offs between work and leisure such that the value to them of an additional hour of leisure is equated with the (post-tax) value of the income they receive for an additional hour of work. In accordance with VCEC guidance, the most recent average weekly adult ordinary time earnings figure is used as the basis for this calculation. This is $1,172.20. Tax on this wage is equal to $266.00, giving a post-tax income of $906.20. Average ordinary time earnings paid for are 38.1 hours, giving an average post-tax income of $23.74 per hour. Thus, the value of the time spent satisfying the requirements enumerated above has an implicit average value of:

42 x $23.74 = $997.08 for applicants for local adoption;

12 x $23.74 = $284.88 for applicants for step-child adoption; and 58 x $23.74 = $1,376.92 for applicants for intercountry adoption.

As noted above, the average number of local adoption orders made over the past five years was 29, of which an average of 10 related to the adoption of step-children. Thus, the total costs borne by adoptive parents in respect of local adoptions is as follows:

19 x $997.08 = $18,944.52, plus 10 x $284.88 = $2,848.80

Thus, total time costs to adoptive parents in respect of local adoptions averages approximately $21,933.32 per annum.

The number of intercountry adoption orders made in 2006/07 was 95, while it is expected that this number will remain approximately constant in the medium term. Thus, the minimum total cost borne by adoptive parents in relation to intercountry adoptions is:

95 x $1,376.92 = $130,807.40

Adding these two figures gives a (minimum) annual cost borne by adoptive parents of $152,740.72. This is a minimum in that a proportion of applicants will pass through part or all of the process before having their applications refused. The costs borne by this group cannot be calculated precisely and so are not included in the above calculations.

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The annual cost of $152,740.72 is equivalent to a cost of $1,270,284.28 in present value terms over the expected 10 year life of the proposed regulations. However, it must be noted that these costs are “non-cash costs”. That is, they represent the implicit value to applicants of the time that they are required to devote to completing the application process, but do not represent actual cash payments by this group.

These time costs will typically be incurred by adoptive parents over a period of one to three years, as the time taken to complete all stages of the adoption process is necessarily substantial. Applications for inter-country adoption, in particular, are rarely finalised in less than two years.

4.2.2 Attribution of requirements to the regulations

The above indicates that the adoption process imposes quite significant time costs on applicants. However, these costs are arguably attributable to the Act as well as the proposed regulations, since much of the legislative framework governing adoption is established in the Act itself. That said, the key

requirements in respect of the determination of the suitability of applicants for adoption are imposed by the regulations themselves. The specific processes that must be undergone in order to demonstrate that the requirements are met are established by administrative action. However, the fact that the

requirements themselves are established in the regulations suggests that the costs calculated above should, in large part, be attributed to the regulations.

4.3. Administrative burdens on adoption agencies

Divisions 1 and 2 of part 2 of the proposed regulations set out a range of obligations in respect of organisations seeking accreditation as adoption agencies.

The major substantive obligation is the requirement that the principal officer of the organisation must hold tertiary qualifications in social work or social

sciences and have relevant experience. In theory, the establishment of minimum qualifications requirements for an officeholder can be expected to increase the salary payable to officeholders to some extent, due to their effect in reducing the pool of persons potentially eligible to undertake the task. In practice, these requirements are not considered to impose any significant cost on adoption agencies, since it is considered that the great majority of persons whom reputable agencies would consider as qualified to undertake the role of principal officer would, in any case, hold tertiary qualifications of this type and have relevant experience.

The majority of the requirements set out in part two of the regulations involve the provision of information about their affairs by adoption agencies to the Secretary of the Department of Human Services.

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As noted in Section 3, the required information is wide-ranging and includes information on the governance of the organisation, its financing, its reason for wishing to become involved in adoption and its links with other child/family welfare agencies. This is to ensure the agency is able to function effectively and efficiently, has appropriate governance arrangements in place, and is a part of the network of services to families and children.

Information about staff qualifications and training is required, to establish the skills and expertise of staff , information on the proposed geographical scope of the agency’s operations is required to ensure effective service coverage across the state, and information about accommodation and facilities relates to the need to ensure interviews can be conducted in a confidential and private manner and that clients records can be stored securely.

Additional information provisions relate to additional criteria for accreditation applied to intending providers of intercountry adoption services. They have to demonstrate that they have approval to operate in the relevant countries and that they meet certain criteria for the provision of appropriate adoption services, including ensuring that exploitation of children or relinquishing parents does not occur. The requirements of the Hague Convention apply in practice to all Victorian agencies dealing with intercountry adoptions. The required

information includes certifying that they have appropriate accommodation, that they are not involved in aid distribution in the relevant countries and that they are not-for-profit organisations.

All of these provisions can be considered to constitute "administrative burdens". That is, they are costs incurred by an organisation or individual in order to

demonstrate their compliance with the substantive requirements of a particular piece of legislation/regulation. However, they are clearly relatively small in absolute size, given the range of substantive requirements that must be met by adoption agencies. Moreover, the agencies are effectively funded by

government in respect of these costs, given that their operations generally are funded under the adoption program.

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5. Expected benefits of the proposed regulations

5.1. Overview: benefits of regulating adoption practice

The fundamental objective of regulating adoption practice is to ensure that adoption placements meet the developmental needs of adopted children. This is reflected both in the substantial pre-placement education and preparation for parenting provided to prospective adoptive parents, and in the detailed

assessment process which occurs before applicants are approved as fit and proper persons to be adoptive parents.The general aim of the work of adoption services with applicants is to maximise the effectiveness of the pre-placement education and applicant assessment process to reduce the likelihood of disruption occurring.

Given this fundamental objective, the rate of breakdowns in adoption

placements (known as a “disrupted placement”) is generally accepted as the basic measure of "success" in adoption. This reflects the fact that disrupted placements are obviously highly disruptive to adopted children and may often have long-term negative effects on their development.

Box 1: Disrupted placements

Disruption refers to the breakdown of a placement, so that the child is no longer able to remain with the adoptive parents. Disruption may result from the adoptive parents’ request for the child to be placed elsewhere, or a decision may be made by the Adoption service that it is not in the child’s best interests to remain in the placement. A disrupted placement is extremely stressful for all concerned. The focus of the work of the adoption agency with the family post placement is on providing support and ensuring that families have access to relevant community supports, in order to minimise the likelihood of disruption occurring. However, in a very small number of situations, even a high level of support will not be adequate to prevent disruption.

The Victorian Standards in Adoption identify to the circumstances under which disruption of a placement ought to occur:

‘The agency should consider removal of a child placed for adoption if circumstances impair the child’s security in the family and jeopardise the child’s physical and emotional development. Such circumstances may involve a seriously incapacitating physical or mental illness of an adoptive parent, death of an adoptive parent, separation of the adoptive parents, neglect, ill treatment of or rejection of or by the child... These circumstances need to be considered in the context of what the home has to offer the child in the long term and how the agency can assist the adoptive family to deal with the situation constructively. A decision about removal needs to be discussed with the family and include the child in placement where appropriate. There are instances where a family may request removal.’ (Section 6.3.3 Adoption Standards).

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The impact of disruption on the child and the family can be serious and long-lasting. In extreme circumstances, the child’s emotional, physical or developmental progress may be placed in jeopardy through poor care, rejection or even abuse or neglect within the adoptive family. In addition, removal from the adoptive family represents a loss for the child, exposes them to a lack of stability and delays their ability to make a permanent family connection, as another temporary placement will be required before a permanent placement is able to be arranged. There may be substantial costs for society if children require alternative placement in foster care or residential care, and ongoing support and counselling.

For adoptive parents, whether disruption was their decision or was imposed on them, a breakdown is likely to have serious consequences for their self-esteem, confidence and self-respect, because of the sense of failure and grief the breakdown causes. They may have lost the chance to have a family that adoption promised and feel blamed and misunderstood. This may involve the need for ongoing support and counselling services, and impact on health, ability to work, and the welfare of other children remaining in the family.

For birth parents aware of the disruption, this creates a range of difficult emotions, including anger and grief that the outcomes they had sought for their child have not been realised.

Measured against the criterion of the rate of placement breakdowns, the current legislative and regulatory arrangements have been highly successful. No breakdowns of infant adoption placements have been reported in Victoria since 1998 - ie, during the life of the current regulations. Similarly, only six

breakdowns in intercountry adoptions have been recorded in the past decade, one breakdown occurring in 1998/99, one breakdowns occurring in 2003/04, two breakdowns occurring in 2004/05 and two breakdowns occurring in 2006/076. This represents less than one percent of the 745 intercountry adoption placements made since 1998/99.

Among special needs adoptions, four breakdowns have been recorded in the past seven years, with two breakdowns occurring in 2000/01, one breakdown occurring in 2004/05 and one breakdown occurring in 2005/06.

The rate of zero breakdowns in local infant adoption placements and 0.5% in intercountry adoption placements recorded in recent years compares

favourably with the combined breakdown rate of 1.6% for local and intercountry adoption placements reported in the RIS in respect of the 1998 regulations7, suggesting that the effectiveness of the legislative structure governing this area may have continued to improve from its previous, already high levels.

6

Note that ICAS only maintain data on disruptions until the placement is legalised or if there is an overseas adoption order, until the statutory period of supervision is completed, (12 months). Thus, this breakdown data relates only to these periods.

7

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5.2. Benefits due to changes to existing regulatory

arrangements

5.2.1. Sunsetting the declaration of the People’s Republic of China as a prescribed overseas jurisdiction (Part IVa of the Adoption Act 1984)

On 16 September 2005 the People’s Republic of Chinaratified the Hague Convention, with effect from 1 January 2006. Under Convention arrangements, adoption orders granted in China are automatically recognised in Victoria. This section of the regulations, which allows orders to be recognised from a

prescribed country, in this case the People’s Republic of China, will no longer be required from 1 January 2009, by which time all adoptions made under prescribed overseas jurisdiction arrangements will have been finalised. . A sunsetting clause will remove the the section and eliminate a redundant regulatory provision on 1 January 2009.

5.2.2. . Clarification regarding approved counsellors

Regulation 11 of the existing regulations requires the Secretary to keep a list of persons approved as a counsellors" for the purposes of section 5 of the act. Regulation 16 requires that persons approved for the purposes of section 35 (1) of the act must be approved counsellors.

The proposed regulations have been amended in order to clarify that two lists of approved counsellors must be maintained: the first being counsellors approved for the purpose of providing counselling to parents considering relinquishing their child for adoption, and the second being counsellors approved for the purposes of providing information under the access to information provisions of the act.

The qualifications required for each role are essentially the same. However, the two functions are quite separate and distinct:

The access to information role involves assisting a person obtain information and to contact members of their birth family from whom they have been separated by adoption. Counselling relinquishing parents involves providing information and counselling to parents considering the adoption of their child . The Adoption and Family Records Service does most of the access to

information work, which is separate from the adoption agencies which place children. The approved agencies are also approved to do this work. All

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adoption agencies must have approved counsellors to undertake

relinquishment counselling, and counsellors can be approved for both roles. The purpose of separating these lists is to demonstrate with greater clarity that the purpose and direction of the roles are different and that approval to

undertake one role does not necessarily imply approval to undertake the other.

5.2.3. Changes to requirements for applicants for approval as fit and proper persons to adopt

Slight changes are to be made to the wording of these requirements so that they will better reflect current attitudes and approaches to the application of these tests. Reference to the “personality” of the applicant is removed, while applicants will be assessed on their ability to provide a stable, as well as secure and beneficial, environment under the proposed wording.

In addition, three new criteria for assessing applicants are added. These are: • the criminal records and history (if any) of household members;

• the applicants’ capacity to provide appropriate support to the

maintenance of a child’s cultural identity and religious faith (if any) ; and • the applicants’ capacity to support contact and exchange of information

with a child’s birth parent and family.

These changes are intended to better reflect current concerns and

circumstances in relation to adoption practice. In particular, the addition of the last two criteria cited above is reflective of the increasing focus in recent years on allowing relinquishing parents to state preferences in relation to the

environment in which their child will be raised and, concomitantly, on providing relinquishing parents with opportunities to maintain contact with their child or to receive information about them. Indeed, approximately 95% of adoptions across Australia are now considered “open”, in the sense that some information is provided to relinquishing parents (AIHW 2006, p 34). Within Victoria, almost all local adoption orders contain conditions for access and /or information exchange with the birth family.

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6. Identification and assessment of feasible

alternatives

6.1. Overview of regulatory and non-regulatory alternatives

Section 10(c) of the Subordinate Legislation Act 1994 states that an RIS must contain:

(c) a statement of other practicable means of achieving [the identified

objectives of the proposed regulation]..., including other regulatory as well as non-regulatory options;

Section 2 of the guidelines published under the authority of Section 26 of the Act also deals with the issue of alternatives. It states:

In considering alternative means of achieving a policy objective, self-regulation, voluntary codes of conduct or otherwise, must be considered. As required by the act, and its associated guidelines, a range of non-regulatory alternatives has been considered during the development of the current

regulatory proposal.

As a threshold issue, it can be noted that the Adoption Act 1984 clearly

envisages that regulations will be made prescribing requirements in a range of areas necessary to give practical effect to the provisions of the act. In addition to the wide-ranging regulation making power conferred by section 130 of the act, numerous other references in the text of the act clearly requires certain matters to be set out in regulation in order to enable the provisions of the act to function effectively. Given this legislative context, it is not considered feasible to achieve the identified objectives of the proposed regulations through any other, non-regulatory means.

However, it is important to demonstrate that, even were the legislative context to be one in which the use of non-regulatory options might otherwise be feasible, the specific nature of the problems being dealt with by the proposed regulations are such as to render the use of non-regulatory means

impracticable. Appendix B. of the Victorian Guide to Regulation, published by the VCEC, addresses in general terms the issue of the characteristics of

different policy instruments and their attendant advantages and disadvantages. The following draws on that the discussion in order to highlight the underlying reasons for considering the use of non-regulatory policy tools to be

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Self regulation

Many of the requirements of the proposed regulations relate to information to be provided by organisations seeking approval to operate as adoption

agencies. It is possible to envisage a system in which self regulatory standards governing the operations of adoption agencies were developed by an

association of such agencies, predicts a members agreeing to abide by the standards.

However, as noted in the Victorian Guide to Regulation such self regulatory arrangements do not allow any effective sanctions to be imposed in the case of non-compliance. This makes them most suitable as a policy option in

circumstances in which the consequences of non-compliance are of low impact. This is clearly not the case in relation to adoption, where the negative

implications for child welfare, in particular, of standards of practice by adoption agencies are clearly substantial.

Moreover, where there are substantial incentives for poor practice, there is a strong likelihood that major instances of non-compliance will occur. The international history of adoption is replete with examples of persons and organisations seeking and obtaining major financial gain through child trafficking and other unconscionable practices.

For these reasons, a self-regulatory approach to achieving the identified regulatory objectives is clearly not feasible and is not considered further.

Co-regulation/Quasi-regulation

Co-regulation is a term used to describe arrangements in which industry or professional associations and government share regulatory responsibilities. Commonly, these involve the industry or professional association taking responsibility for developing conduct codes and monitoring compliance, while government legislation provides enforceable sanctions for non-compliance. By allowing for the possibility of enforceable sanctions, co-regulatory

arrangements are generally more suitable than self-regulation in contexts in which non-compliance is likely to have severe consequences. The Victorian Guide to Regulation notes that coregulation is most likely to be suitable where there are clear advantages in government engaging in a collaborative approach with the relevant industry, with industry having strong ownership of the scheme. It is not considered that this situation exists in relation to the adoption area. Moreover, particularly in the context of international adoption, there is a high level of government involvement and a need to ensure that governments of countries from which children are being made available for adoption have confidence in the integrity of the arrangements in place in Australia. Co-regulatory arrangements remain substantially less likely to provide the necessary level of assurance than does a system of explicit government regulation. Consequently, this option is not considered to be a feasible

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alternative means of achieving the identified regulatory objectives and it is not considered further.

Other approaches

The Victorian Guide to Regulation also canvasses a number of other regulatory

and non-regulatory policy tools. These include: • Increasing enforcement of existing provisions; • extending the coverage of existing legislation; • rewarding good behaviour;

• negative licensing;

• public information and education campaigns; • information disclosure; and

• market-based instruments.

However, none of these approaches is considered to be feasible in the context of the proposed regulations.

6.2. Specific regulatory alternatives

Section 13 of the Adoption Act allows the Secretary of DHS or the principal officer of an approved adoption agency to approve applicants as being “fit and proper persons” to adopt a child, subject to their meeting prescribed

requirements. The prescribed requirements are set out in regulation. Consequently, there is, at least in theory, a potential for alternatives to the proposed regulations to be developed, based on the establishment of different requirements for adoptive parents. However, formulation of any alternative set of requirements is necessarily constrained by the need to ensure that they are capable of achieving the Act’s objective of ensuring the welfare of adopted children8. The set of factors set out in the regulations as prescribed

requirements are all clearly related to child welfare criteria and can be

considered to be the minimum necessary to allow judgements to be made on this issue with a high degree of certainty.

In this context, the major area in which a different approach may be adopted would be in terms of the degree of prescription incorporated in the regulations setting out these requirements. The proposed regulations, in common with the sunsetting regulations, set out the prescribed requirements in quite broad terms and do not go into detail regarding the means by which applicants are required to demonstrate their suitability in relation to each criterion. An alternative

8

The Adoption Act does not include an explicit statement of objectives. However, as discussed above, the primary perspective underlying adoption law and practice is that of the primacy of child welfare considerations.

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approach would be to specify in detail the means by which applicants are required to satisfy the nominated criteria.

Expected benefits

The potential benefit of this approach would be that it would increase the transparency of the process of assessing applicants and, potentially, that it would support a greater degree of consistency in decision-making. These benefits may be significant, given the importance of the decision to applicant couples.

However these benefits can also be achieved under the proposed regulations by streamlining existing administrative arrangements and consequently the Department of Human Services is seeking information on opportunities to do this as part of consultation within the RIS process.

Expected costs

The potential costs of this approach are those of loss of flexibility in the assessment of applications. Adoption program officials are able to take into account a wide range of material in reaching a decision as to whether to recommend approval of applicants as fit and proper persons to be adoptive parents. This reflects the subjective nature of the judgement involved and the importance of ensuring that the decision reached is appropriate.

To provide additional constraints on the means by which decision-makers could inform themselves regarding applicants’ suitability would have potentially

negative impacts on the quality of the decisions reached.

As an example of the potential difficulties of adopting a more prescriptive approach to eligibility requirements, it can be noted that two states (Western Australia and Queensland) apply a Body Mass Index requirement to applicants. This is an extremely imprecise summary measurement of aspects of a person’s health and, as noted in the Bishop Report (see p 52), can lead to very fit

persons being excluded on the basis of a single measure.

Having reviewed the issue of eligibility requirements, the Bishop Report

concluded that there should be few absolute eligibility requirements for adoptive parents, with a preferable approach being to specify a range of matters to be taken into account (p 57). This is consistent with current Victorian practice and would be likely to be undermined should a more prescriptive approach be taken to eligibility criteria.

Adoption Regulations 2008

REGULATORY IMPACT STATEMENT