An adoption order will only be made if each parent or guardian gives their consent.
The consent of the father of a child born outside of lawful marriage is required if his paternity is recognised under the law of South Australia (see How is paternity determined?).
If it appears that a particular person may be able to establish paternity of a child, the Court will not make an adoption order without allowing that person reasonable opportunity to establish paternity [Adoption Act 1988 (SA) s 15(7)].
Counselling must occur before consent can be given
The relinquishing parent must have been counselled at least three days before signing a consent to the adoption. Written information on the following must be provided to the relinquishing parent:
- information on counselling and other support services available
- the implications of adoption
- the consequences of consenting to the adoption
- the procedures and time limits for revocation of consent
- arrangements that may be made for the care of the child as alternatives to adoption
The consent must be in writing, be witnessed and endorsed by an authorised officer with a counsellor providing endorsement that counselling has occurred. The witness must also satisfy himself or herself that the relinquishing parent understands the nature of the consent they are giving.
When consent can be given
The mother's consent can only be taken at least fourteen days after the birth of the child. The consent may be revoked within twenty five days although the Chief Executive may approve, during the twenty five day period, for this time to be extended by another fortnight [Adoption Act 1988 (SA) s 15].
Types of consent
The consent may be in general terms authorising the child to be adopted by anyone. If both parents consent in general terms, the Chief Executive becomes the child's guardian and must place the child for adoption with a couple previously placed on the Prospective Adopters Register [Adoption Act 1988 (SA) s 15].
When a limited consent is signed, the Chief Executive does not become the child's guardian and has no responsibility for placing the child. The consent may be limited authorising the adoption of the child by:
- a relative of the child
- a person who has been appointed guardian of the child by a court
- a step-parent or
- a foster parent in whose care the child was placed by the Chief Executive.
Consent of child required for children over age of 12
Adoptions of children over the age of 12 years cannot occur without the formal consent of the child to his or her own adoption. As with parents, the child must be counselled at least three days before consenting, must be given written information about counselling and support services available, about the implications of adoption and the consequences of consenting and the procedures and time limits for revocation of consent. The adoption application should not be heard until twenty five days have lapsed after the consent was given and can be revoked by the child at any time up until the making of an order.
The court must be satisfied after interviewing the child in private that the consent is genuine and that the child does not wish to revoke it.
Dispensation of consent
Where a parent does not or cannot consent to an adoption the Chief Executive or the applicant for an adoption order may apply to the Youth Court to dispense with that parent's consent. The court may dispense with a parent's consent if there are other circumstances that allow the consent to be properly dispensed with or, if satisfied that the parent:
- cannot be found or identified after reasonable enquiry
- due to a physical or mental condition is not capable of properly consenting
- has abandoned, deserted or persistently neglected or ill-treated the child
- has failed, for at least one year, without reasonable excuse, to carry out his or her obligations as a parent.
To protect the rights of a natural parent the Act provides that notice of the application must be given to a parent whose consent is required and who has not consented to the adoption. The court does not dispense lightly with the consent of a parent (or guardian) and will provide every opportunity to parents to present arguments why their consent should not be dispensed with.
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.