This section covers the following topics:
Who is presumed to be a parent upon the birth of a child?
A child born to a woman during her marriage or marriage-like relationship with a domestic partner (irrespective of their sex or gender identity), or within 10 months of the marriage or relationship ending, is generally presumed (in the absence of proof to the contrary) to be the child of its mother and the husband or domestic partner [see Family Relationships Act 1975 (SA) s 8]. Domestic partner is defined in s 11A to include those in a registered relationship, as well as those who have been living together in a close personal relationship (as a couple on a genuine domestic basis) for 3 years or who have had a child together.
Different presumptions apply where the child is conceived following fertilisation procedures [s 10C]. These serve to recognise the intended parents, rather than the biological parents. See also Reproductive technologies.
Who is responsible for registering a birth?
Both parents are jointly responsible for registering the birth of their child and both must sign the birth registration statement. However, the Registrar may accept a statement signed by only one parent if satisfied it is impossible, impracticable or inappropriate for the other parent to sign whether because of death, disappearance, ill health, unavailability or the need to avoid unwarranted distress.
If only one parent signs the birth registration statement, he or she must attach an explanation of why the other parent has not signed. The Registrar has the authority to make further enquiries if not satisfied with the explanation given.
See Births, Deaths and Marriages Registration Act 1996 (SA) s 15.
If a child is born through a recognised surrogacy agreement, either or both commissioning parents may make an application to the Youth Court to be recognised as parents [Family Relationships Act 1975 (SA) s 10HB(13)]. The Registrar of Youth Court must then provide the Registrar of Births, Deaths and Marriages with written notice of the order and other details required for the purposes of birth registration [s 10HD]. For more information about surrogacy, see Having a child, Surrogacy.
How is a birth registered?
A birth registration statement must be lodged with the Registrar of Births, Deaths and Marriages ('the Registrar') within 60 days of the child's birth. The maximum penalty for not doing so is $1 250.
See Births, Deaths and Marriages Registration Act 1996 (SA) s 16(1).
What if a birth is registered late?
A birth can still be registered outside the 60 day period and the Registrar must accept a birth registration statement even if lodged outside of this period.
See Birth, Deaths and Marriages Registration Act 1996 s 16(2).
Information to be included in the birth registration statement
The following information must be provided in the birth registration statement [see Births, Deaths and Marriages Registration Regulations 2011 Reg 5]:
In the case of children conceived as a result of a fertilisation procedure:
This information is also to be recorded in the Register [Births, Deaths and Marriages Registration Act 1996 (SA) section 14(2) and reg 6]. Once the Donor Conception Register is established under the Assisted Reproductive Treatment Act 1988 (SA), this information will no longer be required in the birth registration statement [s 14(5)].
Can details of parentage be altered after the birth has been registered?
There are provisions to allow alterations about a child's parentage under the following circumstances:
See Births, Deaths and Marriages Registration Act 1996 s 18.
A parent or child or somebody whose rights are affected by the relationship, may apply to the Magistrates Court for a declaration of parentage [Family Relationships Act 1975 (SA) s 9].
Must the birth registration include the name of the child?
Yes, the birth registration statement must include the name of the child. Although the name is a matter of choice for the parents lodging the statement, the Registrar can assign a name to a child if the name stated in the birth registration statement is a prohibited name or the birth registration is lodged by both parents and they satisfy the Registrar that they are unable to agree on the child's name.
See Births, Deaths and Marriages Registration Act 1996 (SA) s 21.
What happens if there is a dispute about the child's name?
In the event of a dispute between parents as to the child's name either parent may apply to the South Australian Civil and Administrative Tribunal (SACAT) for orders resolving the dispute. For more information, see Changing a child's name.
Access to reproductive technology
As of 21 March 2017, access to reproductive technologies such as artificial insemination is no longer restricted on the basis of infertility. This restriction had acted to prohibit fertile same-sex couples from accessing reproductive technologies. The focus on infertility has been replaced with the requirement that it would be “unlikely that, in the person’s circumstances, the person will become pregnant other than by assisted reproductive treatment” [ see Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c)(i)].
Prior to 2010, it was also a requirement that those seeking treatment be either married or in a de facto relationship of at least 5 years duration. There is not now any requirement of this nature.
Registration of birth of child to female same-sex parents
Under section 10C of the Family Relationships Act 1975 (SA), the female partner of a woman who has given birth due to assisted insemination or assisted reproductive treatment (see the Assisted Reproductive Treatment Act 1988 (SA)) can be recognised as a co-parent of the child on the child's birth certificate. Recognition of the co-parent is subject to some conditions. A woman is recognised as the co-parent if:
Both women can be registered as co-parents even if they were not living together as domestic partners at the time of the birth, or at the time of registration.
If a birth was previously registered with only the mother as a parent, it is possible to change a child's birth certificate through Births, Deaths and Marriages to to include a female partner as a co-parent, as long as the conditions outlined above apply.
The law in South Australia recognises only those surrogacy agreements that conform to the requirements outlined in the Family Relationships Act 1975 (SA).
A surrogacy agreement (‘recognised surrogacy agreement’) is an agreement under which a surrogate mother agrees to become pregnant, or to seek to become pregnant, and to surrender custody of, and rights in relation to, a child born as a result of the pregnancy to another party to the agreement [s 10HA(2)].
The only parties to a recognised surrogacy agreement are the commissioning parents and the surrogate mother, and, if the surrogate mother is married, either legally or living with a man as his wife on a genuine domestic basis [s 10A(1)], the surrogate mother's husband. No-one else may be a party to a surrogacy agreement [s 10HA(2a)].
The commissioning parents are the two persons it is agreed will have custody of a child under a recognised surrogacy agreement. The commissioning parents must be:
A surrogacy agreement can only be entered into under the following circumstances [s 10HA(2a)(e)]::
The surrogate mother is the person who agrees to become pregnant or to seek to become pregnant, for the purposes of the recognised surrogacy agreement [s 10F].
There is no requirement that the surrogate mother must live in South Australia. If the surrogate mother lives overseas, the surrogacy agreement must be approved by the Minister as an international surrogacy agreement [s 10F].
A recognised surrogacy agreement must state that:
A recognised surrogacy agreement must be in writing and signed by each of the parties, with the signatures being attested by a lawyer for the commissioning parents, and another independent lawyer for the surrogate mother and, if relevant, her husband or partner [s 10HA(6)].
Offences [s 10H]
It is an offence to negotiate, arrange or obtain the benefit of a surrogacy contract on behalf of another for payment and in circumstances that do not meet the criteria for a recognised surrogacy agreement.
It is also an offence to induce another to enter into a surrogacy contract for valuable consideration.
The maximum penalty is 12 months imprisonment.
Advice on contraception, pregnancy and abortion is readily obtainable from medical practitioners or other health services.
A person seeking advice or receiving contraceptive or pregnancy-related treatment does not need their partner or spouse's consent. Neither does a child or young person need the consent of their parent or guardian. However, in the case of a child under 16 years, a second medical opinion may be necessary for treatment. Please see the chapter, Medical Treatment and Related Issues, Children under 16 years, for more information.
Where a child or any person is unable to give consent to an abortion or sterilisation (for example, due to an intellectual disability) only the South Australian Civil and Administrative Tribunal (SACAT) can give consent, not the person's parents, but they are given an opportunity to make submissions to the Tribunal [Guardianship and Administration Act 1993 (SA) s 61]. However, in the case of P. v P. (1994) 181 CLR 583;  HCA 20, the High Court held that where a child's parents have been married, the Family Court has the power to make an order approving sterilisation, notwithstanding a decision contrary by the Tribunal.
In South Australia the law on abortion is covered by the Criminal Law Consolidation Act 1935 (SA) s 82A(1). To perform an illegal abortion on oneself or someone else is an offence with a maximum penalty of life imprisonment.
A woman (of any age) who has resided in South Australia for at least two months may have an abortion, at certain hospitals, by a medical practitioner who agrees with another medical practitioner with one of the following assessments:
In Australia adoptions are the responsibility of the State Governments. In South Australia, the adoption process is governed by the Adoption Act 1988 (SA).
All adoptions of children by residents of South Australia are conducted through the Department for Child Protection.
Because very few babies and children are relinquished for adoption in South Australia there has been a marked increase in interest in adopting a child from overseas countries see Adopting an overseas child.
Adoption is a legal process where the rights and responsibilities of the birth parents are transferred to the adoptive parents. There are two types of adoption: local (i.e. from within Australia) and inter-country (i.e. from other countries).
Private adoptions (i.e. adoptions where a child is placed with adoptive parents without the involvement of an agency) are illegal in South Australia.
For more information on adoptions of children by residents of South Australia, visit the Department for Child Protection website.
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)]. The adoption jurisdiction of the Court is also governed by the Youth Court (General) Rules 2016 (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
Since 15 December 2018, the Court has been 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)]:
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.
Only those people who are listed on the Prospective Adopters Register are eligible to adopt a child. The Prospective Adopters Register lists all people who have expressed an interest in adoption and who have satisfied the requirements under the Adoption Act 1988 (SA). To determine whether an applicant is eligible to be listed on the Prospective Adopters Register, the Department for Child Protection must have an assessment report undertaken which outlines the suitability of the applicant to adopt a child [see Adoption (General) Regulations 2018 (SA) reg 10]. The assessment report must take into account a number of factors, including the parenting skills of the applicant, whether the applicant has care of any other child, the applicant's financial position, and the physical and mental health of the applicant [see reg 10(4) for full list of factors].
If, after considering the assessment report, the Department for Child Protection is satisfied that the applicant(s) is a suitable person to adopt a child, they will be listed on the Prospective Adopters Register [see reg 11(2)].The Department must determine an application to be listed on the register within 18 months of it being lodged [see reg 11(1)].
A person dissatisfied with a decision of the Department for Child Protection in relation to registration matters (including assessment reports) may apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review of the decision within 30 days of receiving the decision [see reg 17].
Only couples in a qualifying relationship eligible to adopt
Previous restrictions allowing only heterosexual couples to adopt have been removed. The requirement now is that a couple be in a qualifing relationship which includes same sex couples (see below). See the Department for Education website for further information on the adoption process.
To qualify as prospective adoptive parents a couple must be in a qualifying relationship (i.e. either married or de facto and either heterosexual or same sex) and have lived together continuously for at least five years.
A relationship of less than five years may be considered if the Court is satisfied that special circumstances exist [Adoption Act 1988 (SA) s 12]. Normally, the Chief Executive cannot select a person from the Adoption Register unless they have been living with another in a qualifying relationship for a continuous period of at least 3 years [Adoption (General) Regulations 2018 (SA) reg 19(3)(c)].
Circumstances under which only one person may adopt
Adoption orders in favour of one person can only be made in the following circumstances [s 12(3)]:
Who cannot adopt
Unless there are particular circumstances relating to the child to be placed and where those needs can be best met by other applicants, a person will not be considered as a suitable applicant for adoption if she or he:
It is a minimum requirement that a prospective parent be either an Australian permanent resident or citizen (in the case of joint applicants at least one of the applicants must be an Australian citizen).
A prospective parent must also be living in and domiciled in South Australia.
[see Adoption (General) Regulations 2018 (SA) reg 9]
See the Department for Child Protection - Adopting a Local Child website for more information on the process of adopting a local child within South Australia.
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:
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 least 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:
[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:
Where a child appears to be intellectually incapable of giving consent the Court may dispense with their consent [s 18(2)].
Before a court considers the application for adoption by a step-parent, the Family Court of Australia must first give approval for the adoption to proceed under s 60G of the Family Law Act 1975 (Cth) [see Adoption Act 1988 (SA) s 10(2). Approval is rarely given therefore legal advice should be sought if intending to adopt in such circumstances.
Although the Adoption Act 1988 (SA) provides for the adoption of a child by a step-parent the legislation discourages inappropriate applications. A step-parent or relative can only adopt a child who is less than 18 years of age, if it is in the child's best interests and it is clearly preferable to any alternative order, such as a parenting order [s 10]. The child's parent and step-parent must have lived together for at least five years unless the Court is satisfied there are special circumstances [Adoption Act 1988 (SA) s 12]. The relationship between a child and a parent whose partner adopts the child is not affected by the adoption order.
Intercountry adoption is a very time consuming and complicated process. Due to the complexity of these matters a considerable amount of time can pass between making the application and the finalisation of the adoption.
Australia is a signatory to the Hague Convention with Respect to Intercountry Adoption, the purpose of which is to protect children against abduction and child trafficking. Under the Hague Convention all intercountry adoptions must be coordinated through a central government agency. In Australia this is the Commonwealth Attorney-Generals’ Department. However, as the processing of adoptions is done by the relevant state government authority, all intercountry adoptions in South Australia are administered by the Department for Child Protection. As a result, privately arranged adoptions are not recognised under Australian law.
The only exception to this is for expatriate Australian citizens, residing and working in an overseas country, who are eligible to adopt a child under that country’s laws (see Intercountry adoptions not involving an Australian state adoption authority).
It is important to understand that the Department of Home Affairs will refuse a child an entry visa unless adoption arrangements meet migration requirements. This may be the case even if the adoption has been lawfully arranged in the overseas country. It is important to obtain legal advice both in Australia and in the overseas country before considering an adoption not involving the South Australian adoption authority (i.e. the Department for Child Protection).
The Department for Child Protection will not normally give approval to adopt a relative or a child known to the prospective adoptive parents. In these cases there may be other options, such as applying for an orphan relative visa. For further information contact the Department of Home Affairs.
Step 1: Determining eligibility
After attending an information session conducted by the Department for Child Protection prospective applicants lodge an Expression of Interest. An interview is then arranged with a DCP worker to determine country eligibility and suitability.
Step 2: Orientation, Application and Assessment
Applicants will attend an Education workshop prior to being invited to lodge a formal application. After the application is received a Family Assessment will be conducted and a report prepared for the purpose of assessing the suitability of the applicants as prospective adoptive parents.
Applicants who are not approved will be advised of this and of their rights to appeal the decision. Those applicants who are approved are allocated a DCP social worker who will be their contact point throughout the adoption process.
Step 3: Applying to the overseas country
The application is sent to the chosen overseas country where it is evaluated by the overseas adoption authority. At this stage nothing can happen until the overseas authority makes the decision that a child can be adopted to a foreign country.
Step 4: Matching and placement of child
The overseas adoption authority will make a determination about whether the applicants are suitable adoptive parents for the child. This decision will also be considered by DCP before a formal allocation is approved.
After approval is given legal and administrative processes in the child’s country must be finalised. The child must also be medically examined and granted an Australian resident visa.
Step 5: Arriving home
After arriving home it may be necessary to apply for an adoption order if the adoption was not finalised overseas. In most cases the Department for Child Protection will be the legal guardian until the adoption process has been finalised. Some countries require ongoing reports about the child’s progress until they legally become an adult. Families are allocated a DCP worker to assist with providing progress reports.
Intercountry adoptions not involving an Australian state adoption authority
The Hague Convention prohibits privately arranged adoptions. However, the only exception to this is expatriate Australian citizens or permanent residents who are living and working in an overseas country. If they are eligible to adopt a child under the law of that country they may be eligible to apply for an adoption visa to bring the child back to Australia.
To be eligible for a visa for the adopted child the following criteria must be met:
Immigration issues to be aware of
Further information can be found at the Intercountry Adoption Australia website.
Prior to the changes made by the Adoption (Review) Amendment Act 2016 (SA) from 15 December 2018, upon notice of an adoption, the Registrar of Births Deaths and Marriages would cancel any entry formerly made in the register and make a fresh entry containing the names of the adoptive parents. This was the case unless the birth parents consented to the former entry remaining with a note only, and the Court so directing.
Now in every case a note only is added to any entry formerly made with the names of the adoptive parents or (if the child's birth is not yet registered in South Australia) an entry Is made containing the date and place of birth of the child, the names of the child's birth parents (if known) and the names of the adoptive parents [Adoption Act 1988 (SA) s 41].
No one is able to access information in the register of births relating to an adopted person until the adopted person is 18 years of age, unless all the parties to the adoption agree to the information being accessed earlier and give the Chief Executive of the Department for Child Protection a consent notice [s 41(2)-(3)]. If the Chief Executive gives the Registrar the consent notice, then the Registrar may allow a party to the adoption earlier access to the information in the registry (including access to a cancelled entry) [s 41(4)(a)].
If the Registrar has not been given a consent notice, the Registrar may not allow access by the adopted person or the adoptive parents to a cancelled entry or to information in an entry relating to the birth parents or the name of the adopted person before adoption [s 41(4)(b)(i)], nor the birth parents access to the names of the adoptive parents or the name of the adopted person following the adoption [s 41(4)(b)(ii)].
A consent notice may be revoked at any time by any party to the adoption and ceases to have effect when the adopted person turns 18 years of age [s 41(5)].
Restricting access to/Accessing identifying information
Where an adoption occurred prior to the commencement of the Adoption Act 1988 (SA) (i.e. 17 August 1989), a birth parent had the ability to direct the Chief Executive not to authorise the adopted person access to a cancelled entry. Such a direction was effective for a period of five years and could be renewed by the birth parent.
Since 15 December 2018, under the new section 41A of the Act these directions from birth parents are being phased out with all directions expiring within five years from the commencement of the new provisions (i.e. 15 December 2023). Existing directions will remain in effect from 15 December 2018 but they will not be able to be renewed, as was previously the case.
After these directions expire, the Registrar will be able to allow access to information in the register by a person adopted before 17 August 1989.
Under the new section 41A, the Registrar may also generally allow access to cancelled entries (which are not the subject of a direction) to a birth parent or the adopted person, if they are aged 18 years or more.
Due to the issues that will be raised for many people as a result of these changes the Department for Child Protection is providing support during the transitional period. Support can also be sought from the Post Adoption Support Service of Relationships Australia (SA).
Prior to the changes made by the Adoption (Review) Amendment Act 2016 (SA) from 15 December 2018, the grounds for discharging an adoption order in South Australia were very narrow, relating only to whether the adoption order was obtained by fraud, duress or other improper means. Applications may now be made on the grounds that it is in the best interests of the adopted person, taking into account their rights and welfare. The interests, rights and welfare of the adopted person now determine whether a discharge order is made on this grounds or any other, as well as whether any related orders are made.
Grounds for discharge order
From 15 December 2018, the adopted person, the birth parent, the adoptive parent or the Chief Executive of the Department for Child Protection may apply for an order discharging an adoption order on the ground that the discharge order is in the best interests of the adopted person, taking into account the rights and welfare of the adopted person [Adoption Act 1988 (SA) s 14(1)(b)]. It continues to be possible to apply for a discharge order on the ground that the adoption order or consent for the adoption order was obtained by fraud, duress or other improper means [s 14(1)(a)].
Investigation into case
If the Court is satisfied there may be grounds for a discharge order, the Court must direct the Chief Executive of the Department for Child Protection to carry out an investigation into the circumstances of the case. The Court may also direct another person nominated by the Attorney-General to carry out an investigation [s 14(2)-(3)]. If, after considering a report from an investigation, the Court is satisfied that the discharge order should be made and the discharge order would not be prejudicial to the rights, welfare and interests of the adopted person, then the Court will make the discharge order [s 14(4)].
Effect of discharge order
If the Court makes a discharge order, any consent for the adoption ceases to have effect [s 14(5)]. In addition, unless the Court otherwise orders, the rights, privileges, duties, liabilities and relationships of the formerly adopted person with all other persons will be the same as if the adoption order had never been made [s 14(7)]. However, this does not affect anything lawfully done, the consequences of anything unlawfully done or any proprietary right or interest that became vested in a person while the adoption order was in force [s 14(8)].
Other related orders
When making a discharge order the Court may also make other related orders it considers necessary taking into account the rights, welfare and interests of the adopted person [s 14(6)]. This may include orders relating to:
Once an adopted child turns 18, he or she is entitled to information concerning his/her birth parents held by the Department for Child Protection through the Department's Freedom of Information team [Adoption Act 1988 (SA) s 27].
The information that can be released includes:
The information may be given to a lineal descendant of the adopted child if they consent or where they are deceased or cannot be located.
Similarly, where the adopted child has reached 18 years, birth parents may also obtain any information, messages, or items held by the department relating to the adoptive parents or the adopted child.
Adoptive parents may also obtain information, messages, or items held by the department relating to the birth parent or the adopted child, provided the adopted child has reached 18 years and consents.
Where an adopted person’s birth parent was themselves an adopted person and is dead or cannot be located, the adopted person may obtain, if known, the names of their birth parent’s birth parents (i.e. their biological grandparents) and any other information in the possession of the department relating to their birth parent’s birth parent [s 27(3a)].
For further information see the Department for Child Protection - Provision of Adoption Information website.
Restricting access to/Accessing identifying information
Where an adoption occurred prior to the commencement of the Adoption Act 1988 (SA) (i.e. 17 August 1989) an adopted child, adoptive parent or birth parent had the ability to veto the release of identifying information. These vetoes were effective for a period of five years and could be renewed if the restriction was still required.
Since 18 December 2017, under the revised section 27B of the Act the power to request a veto has been phased out with all vetoes expiring within five years from the commencement of the new provisions (i.e. 17 December 2022). Existing vetos remained in effect from 18 December 2017 but they will not be able to be renewed, as was previously the case.
The effect of this is that after five years a party to an adoption can apply for information regarding the adoption except in the following circumstances:
A person who has lodged a veto under the old section 27B may, at any time before the expiry day, give the department a written statement setting out their wishes (Statement of Wishes) in relation to contact by another party to the adoption.
Due to the issues that will be raised for many people as a result of these changes the Department for Child Protection is providing support during the transitional period. Support can also be sought from the Post Adoption Support Service of Relationships Australia (SA).