Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
Part 4 Recognition of Australian adoptions
53 Recognition of Australian adoptions
An order for the adoption of a person that was made in a State or another Territory (whether before or after the commencement of this Act) has the same effect as an adoption order made under this Act if the order—
(a) was made in accordance with the law of the State or Territory; and
(b) has not been rescinded under the law of the State or Territory.
Part 4A Intercountry and overseas adoption
Division 4A.1 Preliminary
54 Adoptions outside Australia—general
(1) The adoption of a person in a country outside Australia (whether before or after the commencement of this section) does not have effect as an adoption for the law of the Territory, except as provided for in this part.
(2) However, nothing in this part affects any right that was acquired by, or became vested in, a person before the commencement of this part.
55 State central authority
(1) The chief executive is the State central authority for the ACT for the purposes of the Convention, article 6 (2).
(2) The chief executive must tell the Commonwealth central authority—
(a) that the chief executive is the State central authority for the ACT; and
(b) the address and functions of the State central authority for the ACT.
56 Functions of State central authority
(1) Subject to subsection (2), the State central authority for the ACT—
(a) has all the duties of a central authority under the Convention; and
(b) may exercise all of the powers of a central authority under the Convention.
(2) The functions of the State central authority for the ACT do not include any functions that are functions of the Commonwealth central authority under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cwlth).
Division 4A.2 Convention on intercountry adoption
Subdivision 4A.2.1 Adoption under Convention
57 Adoption in ACT of ACT child or young person by parents from Convention country
(1) The court may make an adoption order for the adoption of a child or young person who is habitually resident in the ACT by a prospective adoptive parent or parents who are habitually resident in a Convention country.
Note Convention country does not include Australia—see the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cwlth), reg 4.
(2) Division 3.2 (Who can adopt?) does not apply to an adoption order under this section.
(3) In addition to the matters set out in section 39F (Deciding application for adoption order for child or young person), the court must not make the order unless satisfied that—
(a) the report mentioned in section 57A has been given to the central authority of the Convention country; and
(b) the central authority of the Convention country has agreed to the adoption of the child or young person; and
(c) the central authority of the Convention country has agreed to recognise the ACT adoption order as a full and permanent adoption order in the Convention country; and
(d) the prospective adoptive parent or parents are present in the ACT when the adoption order is made.
(4) The court must not make the order if the child or young person is not allowed to leave Australia—
(a) under a law of the Commonwealth, a State or another Territory; or
(b) because of an order of a court of the Commonwealth, a State or another Territory.
57A Report on child for intercountry adoption
(1) For an adoption order mentioned in section 57, the chief executive must prepare a written report that includes—
(a) information about the identity, background, social environment, family and medical history of the child or young person; and
(b) evidence that each consent required under division 3.3 has been given, or that the requirement for consent has been dispensed with; and
(c) details of the consideration given to placing the child or young person for adoption in Australia and any other action that could be taken to care for the child or young person in Australia; and
(d) an assessment of whether the chief executive is satisfied that the child should be adopted outside Australia; and
(e) information about the circumstances and suitability of the prospective adoptive parent or parents.
(2) A copy of the report must be given to—
(a) the court; and
(b) the central authority of the Convention country where the prospective adoptive parent or parents are habitually resident.
57B Adoption in ACT of child or young person from Convention country by ACT parents
(1) The court may make an adoption order for the adoption of a child or young person who is habitually resident in a Convention country by a prospective adoptive parent or parents who are on the register of suitable people.
Note For the register of suitable people, see s 19.
(2) In addition to the matters set out in section 39F (Deciding application for adoption order for child or young person), the court must not make the order unless satisfied that—
(a) the central authority of the Convention country has agreed to the adoption of the child or young person; and
(b) the child or young person is allowed to reside permanently in Australia; and
(c) the child or young person is present in the ACT when the adoption order is made; and
(d) arrangements for adoption of the child or young person have been made by the chief executive or a private adoption agency.
(3) For subsection (2) (b), a child or young person is not allowed to reside permanently in Australia if the child or young person is affected by a law of the Commonwealth, a State or Territory, or by an order of a Commonwealth, State or Territory court, the effect of which is to prevent the child or young person permanently residing in Australia.
Note A child entering Australia before the order is made is subject to the Immigration (Guardianship of Children) Act 1946 (Cwlth). See this Act, s 37.
57C Issue of adoption compliance certificate
If the court has made an adoption order for the adoption of a child or young person under section 57 or section 57B, the State central authority for the ACT may issue an adoption compliance certificate.
Note Adoption compliance certificate —see the dictionary.
Subdivision 4A.2.2 Recognition under Convention
57D Recognition of adoption of child or young person from Convention country in that country
(1) This section applies if—
(a) an adoption (whether before or after the commencement of this section) by a person who is habitually resident in the ACT, of a child or young person who is habitually resident in a Convention country, is granted in that country; and
(b) arrangements for adoption of the child or young person have been made by the chief executive or a private adoption agency; and
(c) an adoption compliance certificate issued (whether before or after the commencement of this section) in the Convention country is in force for the adoption.
Note Adoption compliance certificate —see the dictionary.
(2) Subject to section 57G (Refusal to recognise adoption or decision), the adoption is recognised and effective, for the law of the Territory, on and after the day the certificate becomes effective.
57E Recognition of adoption of child or young person from Convention country to another Convention country
(1) This section applies if—
(a) an adoption (whether before or after the commencement of this section) by a person who is habitually resident in a Convention country, of a child or young person who is habitually resident in another Convention country, is granted; and
(b) an adoption compliance certificate issued (whether before or after the commencement of this section) in the Convention country in which the adoption is granted is in force for the adoption.
(2) Subject to section 57G (Refusal to recognise adoption or decision), the adoption is recognised and effective, for the law of the Territory, on and after the day the certificate becomes effective.
57F Effect of recognition
(1) Subject to subsection (2), for the law of the Territory, an adoption of a child or young person that is recognised and effective under section 57D or section 57E is to be treated as having the same effect as an adoption order made under this Act.
Note See s 43 (General effect) and the Convention, art 26 and 27. The text of the Convention is set out in sch 1.
(2) The legal relationship between the child or young person and the individuals who were, immediately before the adoption, the child's or young person's parents is terminated if the law of the Convention country where the adoption was granted provides that the adoption of the child or young person terminates the legal relationship.
57G Refusal to recognise adoption or decision
(1) The chief executive may apply to the court for a declaration that an adoption or decision made in accordance with the Convention, article 27 is not recognised.
(2) The court may make the declaration if satisfied that the adoption or decision is manifestly contrary to public policy, taking into account the best interests of the child or young person.
(3) If the court declares that it does not recognise the adoption or decision, the adoption or decision has no effect for the law of the Territory.
57H Order terminating legal relationship between child or young person and parents
(1) This section applies if—
(a) an adoption, by an adoptive parent who is habitually resident in the ACT, of a child or young person who is habitually resident in a Convention country is granted in that country; and
(b) the law of the Convention country does not provide that the adoption of the child or young person terminates the legal relationship between the child or young person and the individuals who were, immediately before the adoption, the child's or young person's parents (the pre-adoption parents ).
Note The text of the Convention is set out in sch 1.
(2) The chief executive may, on behalf of an adoptive parent, apply to the court for an order that the adoption of the child or young person terminates the legal relationship between the child or young person and the pre-adoption parents.
(3) The chief executive must give written notice of the application to the central authority of the Convention country that granted the adoption.
(4) The court may make the order only if satisfied that—
(a) an adoption compliance certificate issued in the Convention country is in force for the adoption; and
(b) the law of the Convention country does not provide that the adoption of the child or young person terminates the legal relationship between the child or young person and the pre-adoption parents; and
(c) the child or young person is allowed—
(i) to enter Australia; and
(ii) to reside permanently in Australia; and
(d) notice has been given as required by subsection (3).
(5) For subsection (4) (c), a child or young person is not allowed to enter or reside permanently in Australia if the child or young person is affected by a law of the Commonwealth, a State or Territory, or by an order of a Commonwealth, State or Territory court, the effect of which is to prevent the child or young person from entering or residing permanently in Australia.
57I Evidential value of adoption compliance certificate
Subject to section 57G (Refusal to recognise adoption or decision), an adoption compliance certificate issued in a Convention country is evidence, for the law of the Territory, that the adoption to which the certificate or order relates—
(a) was agreed to by the central authorities of the countries mentioned in the certificate; and
(b) was carried out in accordance with the Convention and the law of that country.
Note Adoption compliance certificate —see the dictionary.
Division 4A.3 Bilateral arrangements for intercountry adoptions
57J Adoption in ACT of child or young person from prescribed overseas jurisdiction by ACT parents
(1) The court may make an adoption order for the adoption of a child or young person who is habitually resident in a prescribed overseas jurisdiction by a prospective adoptive parent or parents who are on the register of suitable people.
Note For the register of suitable people, see s 19.
(2) In addition to the matters set out in section 39F (Deciding application for adoption order for child or young person), the court must not make the order unless satisfied that—
(a) the competent authority of the prescribed overseas jurisdiction has agreed to the adoption of the child or young person; and
(b) the child or young person is allowed to reside permanently in Australia; and
(c) the child or young person is present in the ACT when the adoption order is made; and
(d) arrangements for adoption of the child or young person have been made by the chief executive or a private adoption agency.
(3) For subsection (2) (b), a child or young person is not allowed to reside permanently in Australia if the child or young person is affected by a law of the Commonwealth, a State or Territory, or by an order of a Commonwealth, State or Territory court, the effect of which is to prevent the child or young person permanently residing in Australia.
Note 1 A child entering Australia before the order is made is subject to the Immigration (Guardianship of Children) Act 1946 (Cwlth) see this Act, s 37.
Note 2 Prescribed overseas jurisdiction —see the dictionary.
57K Evidential value of adoption compliance certificate—div 4A.3
An adoption compliance certificate issued in a prescribed overseas jurisdiction, or an adoption order certified by the competent authority of a prescribed overseas jurisdiction as having been made in accordance with the law of that country, is evidence, for the law of the Territory, that the adoption to which the certificate or order relates was carried out in accordance with the law of the prescribed overseas jurisdiction.
Division 4A.4 Recognition of other overseas adoptions
57L Recognition of adoption order made outside Australia
(1) This section applies to an order for the adoption of a person that was made (whether before or after the commencement of this section) in a country outside Australia if, when the legal steps that resulted in the adoption were commenced, the adoptive parent or parents—
(a) had been resident in a country outside Australia for 1 year or more; or
(b) were domiciled in a country outside Australia.
(2) An order for the adoption of a person to which this section applies has the same effect as an adoption order made under this Act if—
(a) the adoption is in accordance with and has not been rescinded under the law of the country outside Australia where the adoption order was made; and
(b) in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person's birth parents in relation to the care of the adopted person; and
(c) under the law of that country, the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.
(3) Despite subsection (2), a court (including a court dealing with an application under section 57M) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.
(4) A court that refuses to recognise an adoption may, when refusing or later, give leave to the applicant to seek an order for the adoption of the person concerned.
(5) In any proceeding before a court (including a proceeding under section 57M), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia complies with subsection (1).
(6) This section does not affect any right that was acquired by, or became vested in, a person before the commencement of this section.
57M Declaration of validity of adoption order made outside Australia
(1) Any of the parties to an adoption order made in a country outside Australia may apply to the court for a declaration that the order complies with section 57L.
(2) On an application under this section, the court may—
(a) direct that notice of the application be given to the people (including the Attorney-General) that the court thinks fit; or
(b) direct that a person be made a party to the application; or
(c) permit a person having an interest in the matter to intervene in, and become a party to, the proceeding.
(3) If the court makes a declaration under this section, it may include in the declaration the particulars in relation to the adoption, the adopted person and the adoptive parent or parents that the court finds to be established.
(4) For the law of the Territory, a declaration under this section binds—
(a) the Territory, whether or not notice was given to the Attorney-General; and
(b) a person who was a party to the proceeding for the declaration or a person claiming through a party to the proceeding; and
(c) a person to whom notice of the application for the declaration was given or a person claiming through a person given notice.
(5) For the law of the Territory, a declaration under this section does not affect—
(a) the rights of a person not mentioned in subsection (4); or
(b) an earlier judgment, order or decree of a court or other body of competent jurisdiction.
(6) In a proceeding in a court of the Territory, the production of a certified copy of a declaration made under this section is evidence—
(a) of the facts stated in, and the matters appearing from, the order mentioned in subsection (1); and
(b) that the adoption complies with section 57L.