Both children less than 18 years of age and those aged 18 years or more may be adopted [ see Adoption Act 1988 (SA) s 8(1)]. However, different criteria apply to the adoption of children less than 18 years and those aged 18 years or more.
Adoption of children less than 18 years of age
The Court will only make an adoption order in relation to a child who is less than 18 years of age if satisfied that adoption is in the best interests of the child and is clearly preferable to any alternative order that may be made [s 10(1)]. The Court must also take into account any opinions expressed by a child aged 5 years or more at an interview conducted by the Court (unless the child is intellectually incapable), but may determine the weight to give the child's opinion [s 8A]. Children who are 12 years of age or more must be interviewed and consent to an adoption in writing [s 16]. Where it would be in the best interests of a child who is less than 18 years of age, the Court may order that the child be represented by a legal practitioner employed or engaged by the Legal Services Commission [see Youth Court (Adoption) Rules 2018 (SA)].
Additional criteria for Aboriginal or Torres Strait Islander children
Before determining whether to make an adoption order in relation to an Aboriginal or Torres Strait Islander child the Court must consider a report of the Chief Executive of the Department for Child Protection setting out that consultation has occurred with a recognised Aboriginal or Torres Strait Island Organisation and any submissions that were made by or on behalf of the organisation [s 11(1a)]. In making an order for the adoption of an Aboriginal child, the Court must apply the Aboriginal and Torres Strait Islander Child Placement Principal [s 11(1b)]. An adoption order will not generally be made unless the applicant is a member of the child's Aboriginal or Torres Strait Islander community and where by customary law they have the correct relationship with the child, or if there is no such person wanting to adopt the child, the applicant identifies as another Aboriginal or Torres Strait Islander person [s 11 (2)]. However, an adoption order may be made where the applicant is not an Aboriginal or Torres Strait Islander person if the Court is satisfied that there are special circumstances and the child's cultural identity will not be lost in consequence of the adoption. The Aboriginal and Torres Strait Island Child Placement Principal is set out in regulation 4 of the Adoption (General) Regulations 2018 (SA).
Adoption of children 18 years of age or more
From 15 December 2018, the Court is able to make an adoption order in relation to a child who is aged 18 years or more where it is satisfied that [s 10A(1)]:
- a significant parent to child relationship existed between the prospective adoptive parent/s and child before the child attained the age of 18 years and
- the child appears to understand the consequences of adoption on the child's interests, rights and welfare [s 10A(1)].
In determining whether a significant relationship existed, the Court may take into account whether the child was cared for by the prospective adoptive parent/s as their child before the child attained the age of 18 years and whether the child was placed in the care of the prospective adoptive parent/s under the Children's Protection Act 1993 (SA) before attaining the age of 18 years [s 10A(2)]. In proceedings for an adoption order in these cases, any parent or guardian or person who has a proper interest in the applicationmay make submissions to the Court (either personally or through a representative) [s 10A(3)].
Where a person 18 years of age or more requires care and guardianship, a power of guardianship is the appropriate solution. See Guardianship and Administration. This is an entirely different legal process and is not an adoption, nor can an adoption be undergone as an alternative.
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