Birthparents consent to adopt
It's very important we understand the legal requirements around consents to adoption.
By law, the birthparents of te tamaiti have the right to sign their consent to the adoption of their tamaiti and to relinquish all of their parental rights and responsibilities. No legal consents are required from any other family/whānau members even though adoption severs the legal connection of the wider family/whānau, hapū and iwi with te tamaiti.
Legal consent is not required from those being adopted. If te tamaiti is old enough to understand, the Family Court must take their wishes into account.
Section 7 of the Adoption Act 1955 specifies that written consent is required from:
- the parents and guardians of te tamaiti who is being adopted — when the birthmother is married and her husband is not the father of the child, the consent of the husband may also be required
- where there is a married sole applicant, this person’s spouse.
The court will require the birthfather's consent where he is a guardian of te tamaiti.
Consent of the birthfather who is not a guardian
The Family Court will decide whether the consent of a birthfather who isn’t a guardian of te tamaiti is required. If the birthfather is willing to give his consent then we should encourage him to – this will benefit all parties, especially te tamaiti.
If the birthfather who is not a guardian opposes a proposed adoption he can apply to the court for guardianship or a parenting order regarding te tamaiti. Once this is before the court, the adoption cannot proceed until the guardianship and custody matters are resolved.
Timing of consent
By law, te tamaiti must be at least 12 days old before the birthparents can consent to an adoption. This is based on case law which determined that a consent cannot be taken until the 12th day after the birth of te tamaiti, which includes the day te tamaiti is born, the 10 days that follow it, and then the next day.
Judicial consideration has established that consent to adoption is only completed when consent has been both given by the birthparents and received by the adoptive applicants.
The document itself is how the consent is communicated to the applicants so if they or their solicitors are notified before the document reaches them (or is filed directly in the court) that consent has been withdrawn by the birthparents, the document becomes inoperative and the application cannot proceed.
The birthparents’ solicitors have been known to delay taking a consent or forwarding it, to give birthparents more time to consider their decision. We need to develop good communication with the relevant solicitors so that they notify us if this happens and we can advise the adoptive applicants.
The consent to adoption must be witnessed by a solicitor. Others who may witness a consent are:
- District or Family Court judge, or
- registrar of the District or High Court, or
- judge or commissioner or registrar of the Māori Land Court.
A solicitor acting for the adoptive applicants or any other solicitor in the same firm cannot witness a consent.
It’s common for the adoptive applicants’ solicitor to draw up the consent for the birthparents’ solicitor to action – the adoptive applicants usually pay the fee of the solicitor taking the consent.
It is a very important legal responsibility to ensure that adoption is fully understood, emotionally as well as rationally, and that consent is freely given. The signed consent will be filed in court together with a certificate from the solicitor or authorised official who witnessed the signature, stating that they are satisfied that the persons giving consent are fully informed of the effects of the adoption order.
What the consent contains
The signed consent is filed in the Family Court and must contain:
- an explanation of the effect of adoption
- where only one birthparent is signing the consent, an affidavit from the consenting birthparent stating the reasons for the absence of consent from the other birthparent
- a certificate from the solicitor or authorised official who witnessed the signature stating they’re satisfied that the birthparents giving consent are fully informed of the effects of the adoption order.
Dispensation of consent
Dispensation of consent or proceeding without birthparent consent to place a tamaiti for adoption is a serious matter and the process should not be started unless we are sure it’s required. It is very unlikely that it would be considered as a way to address a care or protection matter, where te tamaiti is entitled to a family led decision making process under the Oranga Tamariki Act 1989.
Such situations must be carefully considered on their merits. In all cases we should consult with our Adoption Service team leader and an appropriate person from Services for Children and Families, as well as obtain legal advice.
The circumstances in which the court may dispense with the consent of a parent or guardian to the adoption of a tamaiti include:
- where the court has required the consent of a birthfather who is not a guardian and the birthfather can/will not respond (for example, because he disputes his paternity) the court can dispense with his consent
- where the court is satisfied that the parent or guardian has ‘abandoned, neglected, persistently failed to maintain, or persistently ill-treated the child, or failed to exercise the normal duty and care of parenthood’.
Withdrawal of consent
Consent to adoption or any subsequent adoption order cannot be withdrawn when:
- the solicitor taking consent has witnessed the consent and stated that they are satisfied the birthparents understand what adoption means and they’re able to give informed consent
- the birthparents change their mind about placing te tamaiti for adoption after giving consent and the applicants have received it – they cannot withdraw their consent while an application for adoption is pending or until the adoptive applicants have had a reasonable opportunity to make their application
- consent is given reluctantly and later regretted, provided it was the result of a rational decision
- an interim order has been made in relation to the adoption.
There is no statutory requirement that birthparents receive counselling before giving their consent to adoption, therefore the absence of counselling is not, in itself, a sufficient reason for the withdrawal of their consent or revocation of any subsequent adoption order.
There are grounds for withdrawal of consent if:
- the adoptive applicants’ solicitor is notified that consent has been withdrawn before the signed consent document reaches them
- the signed consent is not based on real consent, that is, if it was not given freely, or there is evidence of duress, or if an offence has been committed (for example, financial inducement has been used).
Section 25 of the Adoption Act 1955
When a birthparent seeks to withdraw a consent
When we subsequently learn that the birthparent wishes to withdraw their consent, advise them to seek independent legal advice without delay.
When an adoption application is before the court, the registrar may or may not call for a social worker's report before any hearing of the application to withdraw consent.
If a report is requested, we report in the usual format, giving the details of the applicants, the birthparents and the placement. We don't attempt to address the application to withdraw consent in the court report, as this is a legal matter around the validity or otherwise of the consent.
Consider noting in the summary that as the matter of the consent is before the court, we have considered carefully whether it is appropriate to make a recommendation.