Foster children could soon be adopted without the consent of their birth parents in a move to address case complexities and consistently low adoption rates in the ACT.
Just 1 per cent of the territory’s more than 800 children in foster care have been adopted in the past three years. That equates to nine children out of more than 800 in care.
In the same three years, 39 children (4.7 per cent) secured an enduring parental responsibility order, which the government refers to as a permanency order. The legal order transfers parental responsibility to the carer, in effect meaning they’re the child’s legal guardian. The order can be challenged in court.
In 2017-18, nine children secured an order, the lowest number in three years, despite the government setting a target of 25.
Community Services Directorate data showed in 2017-18 that 29 per cent of children and young people in care were not on long term orders in foster or kinship care.
The dispensation of parental consent proposal is expected to boost the number of children being adopted, in line with the government's commitment to an increased emphasis on permanency.
At the moment, parental consent is needed in most cases unless the parent cannot be found. An application can be made to the ACT Supreme Court to dispense with parental consent under limited circumstances. The government is looking to expand the criteria.
In New South Wales, where the most adoptions were recorded of any state or territory in Australia in the past year, a child can be adopted if they have formed a stable relationship with the carer, and the adoption will promote the welfare and is in the best interests of the child.
NSW Institute of Open Adoption Studies director Amy Conley Wright said the ACT system was not in the best interests of the child. She said all the grounds currently for dispensing with consent were about the birth parents' behaviours, like if they'd abandoned, neglected or treated the child badly.
"It's not always about denigrating the abilities of the parents, who in many cases are doing the best they can in their own circumstances and who many have past experiences with domestic violence or child abuse," Associate Professor Conley Wright said.
"It means you don't have to say, 'It's because this person has been a crap parent', which the legislation in the ACT makes you say."
"What's done in New South Wales is that there are provisions that deal with the best interests of the children. For example, there are grounds of dispensing with consent based on the existing relationship or bond with the proposed adoptive parents.
"That's putting the child's needs first, over the right to parent a child."
NSW Institute of Open Adoption Studies research showed the assumption that permanent orders were equivalent to adoption for children had not been rigorously tested and wasn't supported by evidence.
The institute said research strongly suggested adoption was more beneficial for children than remaining in long-term foster care as it promoted a greater sense of security, stability and belonging.
ACT Community Services Directorate director general Mark Collis said permanency arrangements were a fundamental aim of A Step Up for Our Kids, a strategy released in 2015.
The strategy outlined six recommendations aimed at improving the situation for children in out of home care in the ACT. Four have been completed, including improving information online. The two recommendations still being worked on are exploring integrated birth certificates, and dispensing with parental consent provisions.
"In the ACT the stability of children and young people is critical, however stability should not only be considered in the context of out of home care," Mr Collis said.
He said the ACT's view was that restoring children to their birth parents was a primary focus.
"When these options have been exhausted, finding children a safe and loving permanent home with extended family is the priority over every other form of available care. Foster care plays a critical role for those children where appropriate kinship families have been unable to be identified."
He said $3.46 million over four years allocated in the 2017-18 budget would fund dedicated new resources aimed at increasing the number of adoptions or enduring parental responsibility orders.
Despite the ACT government agreeing that the legislation doesn't reflect best practice when considering adoption, particularly in out of home care circumstances, the process has been slow to change.
In December 2018, the discussion paper on dispensing with parental consent was released for public comment, almost two years after the government agreed to explore the provision.
"In the ACT, grounds for dispensing with consent are limited in scope and no longer respond to the complex nature of adoption in the ACT," the discussion paper reads.
"In addition, the grounds have not been substantially amended or updated since 1993. By looking at Australian jurisdictions and international practice, the ACT government can consider changes that better cater to out of home care circumstances and balance human rights."
The discussion paper states that the court can make adoption orders in respect of an Aboriginal or Torres Strait Islander child if they're not able to be placed with kin or others in the Aboriginal community.
The government is seeking input from those with lived experiences of the process of dispensing with consent, and to help identify changes to the existing grounds for dispensing with consent "to better reflect contemporary practice and respond to out of home care circumstances".
Adoptions across Australia increased by 5 per cent in 2017-18 according to a recent Australian Institute of Health and Welfare report.
There were 330 adoptions in Australia recorded as finalised in 2017-18, an increase from 315 in 2016-17.
Adoptions by carers and foster parents were the most common making up 63 per cent of the total. The report attributed the increase to a policy change in New South Wales that resulted in a higher number of adoptions from care.
The NSW policy change imposes a two-year deadline on permanency decisions and narrows the grounds for the decision to be varied or challenged.
Intercountry adoptions accounted for 20 per cent of the total figure.