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. This excludes a person whose paternity arises from unlawful sexual intercourse with the mother [Adoption Act 1988 (SA) s 15(7)].
Counselling must occur before consent can be given [s 15(5)(b)(ii)].
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
See Adoption (General) Regulations 2018 (SA) reg 5.
The consent must be in writing, be witnessed and endorsed by an authorised person with a statement that the required counselling has occurred. The witness must also satisfy himself or herself that the relinquishing parent understands the consequences of adoption and the procedures for revoking their consent [s 15(5)(b)(ii)]. If the parent or guardian is less that 16 years of age, the consent must be endorsed by at leats 2 authorised psychologists with a statement that they have counselled the parent of guardian and that the parent or guardian appears to have a sufficient understanding of the adoption to be able to make a responsible decision to consent [s15(5)(b)(iii)].
When consent can be given [s 15]
The mother's consent can only be given at least 5 days after the birth of the child [s 15(2)]. Consent given less than 14 days after the birth of the child will not be valid either unless the Court is satisfied that there were special circumstances justifying consent less than 14 days after the birth and the mother was able to exercise rational judgment on the question of consent [s 15(3)].
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 [s 15(6)].
Types of consent [s 15]
The consent may be in general terms authorising the child to be adopted by anyone [s 15(4)(a)]. 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 25(1)].
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 person who is living together with a parent of the child in a qualifying relationship or
- a foster parent in whose care the child was placed by the Chief Executive.
[See Adoption Act 1988 (SA) s 15(4)(b)]
Consent of child required for children over age of 12 [s 16]
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 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 [reg 5]. 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 [s 18]
Where a person does not or cannot consent to an adoption (other than a child) the Chief Executive or the applicant for an adoption order may apply to the Youth Court to dispense with that person's consent. The Court may dispense with a person's consent if there are circumstances suggesting the consent is properly dispensed with or, if satisfied that the person:
- 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
Where a child appears to be intellectually incapable of giving consent the Court may dispense with their consent [s 18(2)].
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