Consent to adoption
Updated: 01 July 2013
Consent to adoption is not the responsibility of social workers, but is a legal activity. It is nevertheless very important that social workers understand the issues, which are:
The finality and virtual irreversibility of adoption means that the statutory requirements of consents to adoption must be strictly observed and complied with. The rules regulating consents to adoption and/or dispensation of consents give the power to consent to the birthparents of the child. No formal consents are required from any other family members in spite of the fact that adoption severs their legal links with the child; nor is formal consent required from persons to be adopted.
Written consent is required from the people determined by the provisions of section 7 of the Adoption Act. These people are:
- the parents and guardians of the child who is being adopted
- where there is a married sole applicant, this person’s spouse
- when the birthmother is a married woman and her husband is not the father of the child, the consent of the husband may also be required.
Consent of birthfather who is not a guardian
Section 7(3)(b) of the Adoption Act leaves it to the discretion of the Court to require the consent of a birthfather who is not a guardian where “it is expedient to do so”. Generally, if the birthfather is willing to provide his consent he should be encouraged to do so as this may ultimately have benefit for all parties, especially the child.
If the birthfather who is not a guardian opposes a proposed adoption he can apply to the court for guardianship or parenting orders in respect of the child. Once this is before the court, the adoption can not proceed until the guardianship and custody matters are resolved.
Timing of consent
The Adoption Act 1955 provides in section 7(7) that “A document signifying consent by a mother of a child to an adoption shall not be admissible unless the child is at least 10 days old at the date of the execution of the document.”
In 1999 the High Court, following the passage of the Interpretation Act 1999 determined “as a matter of clear interpretation of the words of the Statute, a consent cannot be taken until what is effectively the twelfth day after the birth of the child. There is the day on which the child is born, there are ten days which follow it, and then the next day or any time thereafter consent may be given.” N.B. This timing applies to the consent of the mother of the child to be adopted.
Consent to adoption is only completed when it has not only been given but has been received Solicitors have been known to delay taking a consent, or forwarding on a signed consent, until birthparents have taken a longer time for consideration. In this event it is essential that the solicitor convey these intentions to the social worker so that the adoptive applicants can be prepared emotionally also. It is important to develop good communication with solicitors in your area so that this is well understood.
Form of consent
Birthparents have the right to refuse to sign consent unless the identity of the applicants is disclosed to them. Whether or not they have taken the opportunity to meet the prospective adoptive parents, they have the right to know the identity of the applicants before signing their consent to an adoption order.
In New Zealand, the Consent to Adoption must be witnessed by a solicitor, District or Family Court Judge, Registrar of the District or High Court, a Judge or Commissioner or Registrar of the Māori Land Court (s7(8) of the Adoption Act 1955).
Every form of consent to adoption must contain an explanation of the effect of adoption. Where only one parent is signing the consent, the solicitor also needs to take an affidavit from the consenting parent stating the reasons for the absence of consent from the other parent.
A consent cannot be witnessed by the solicitor acting for the applicants. If taken by any other solicitor in the same firm this could constitute a conflict of interest. It is common, however, for the solicitor for the applicants to draw up the consents for the birthparent(s)’ solicitor to action.
It is an 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. It is customary for the adoptive parents to meet the fee of the solicitor taking the consent.
Section 7(6) of the Adoption Act states that consent can be given either unconditionally or subject to conditions with respect to the religious denomination and practice of the applicants in which they intend to bring up the child. Before making an adoption order the Court must be satisfied of the compliance with the condition imposed by the birthparent/s.
Social work role in relation to consent
Where the parties to the adoption have been brought together by Oranga Tamariki, the solicitor/s preparing the consent/s must have been provided with the relevant information in writing. Each solicitor will ultimately need to know all the information for the consent and the application to court. They can then contact each other to determine who will draw up the consent forms – frequently, but not necessarily, this will be the applicants’ solicitor. Both solicitors must be aware that the placement approval will only be issued after the consent has been given and received, as only then can the adoptive applicants take the child home.
Where the applicants who have been selected by the birthparents are not married, they may wish to make an application for a joint order of adoption. Some courts will consider them as ‘spouses’ in terms of section 3(2) of the Adoption Act 1955, but others may not. They might need a fall-back position if the Court will not grant a joint order as they are not married. They may instruct their solicitors to co-ordinate the consents and the applications in the names of both applicants, but with alternative single consent and application by one parent only, to avoid a new consent being required.
See Resource: Adoption placement details for solicitors (DOCX 18 KB) for more information.
Dispensation of consent
Dispensation of consent is a serious matter and not to be embarked upon lightly. It is very unlikely that it would be considered as a means to address a care or protection matter, as there are different processes to be followed under the Oranga Tamariki Act 1989 .
Refer to s8 of the Adoption Act 1955 for the circumstances in which the Court may dispense with the consent of a parent or guardian to the adoption of a child. On occasions where the Court has required that the consent be sought of a birthfather who is not a guardian, and the birthfather can/will not respond (on occasions because he disputes his paternity), his consent can be dispensed with.
Withdrawal of consents
The Adoption Act 1955, while outlining requirements to be met, and legal processes to be followed does not specify any services to be provided to birthparents. Article 21(a) of UNCROC states that informed consent to adoption should have been given “on the basis of such counselling as may be necessary”. It is the solicitor taking the consent who must be satisfied that the birthparents understand what adoption means and that they are able to give informed consent. The absence of social work counselling is not, in itself, a sufficient reason for the withdrawal of consent/s or revocation of any subsequent adoption order.
S9(1) provides that a consent, once given, can not be withdrawn while an application for adoption is pending, or until the prospective adopters have had a reasonable opportunity to make their application (e.g. a change of mind by a birthparent, between the giving of consent and the hearing of the application, does not negate the consent nor prevent the application from going ahead).
After judicial consideration it has been decided that consent is given when the document signifying consent comes into the hands of the adoptive applicants or their solicitors, or is filed in the Court before notice is received that it has been retracted. If the applicants’ solicitors are notified before the document reaches them that consent has been withdrawn the application cannot proceed.
A document signifying consent will be inoperative if it is not based on real consent. If it was not given freely, or there is evidence of duress, or if an offence has been committed under s25 of the Adoption Act 1955 (e.g. financial inducement has been used) there may be grounds for withdrawal of consent.
A consent given reluctantly and later regretted is still consent, provided it was the result of a rational decision. Only where there was no real freedom to make a choice will the consent be negated. Consent cannot be withdrawn after an interim order has been made in relation to the adoption.