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Adoption

Consent to adoption

Who has to consent

Adoption Act 1955, s 2 “relative”, s 4(1)(b), 4(2)

The consent of the child’s parents and guardians is required for any adoption (but not the father if the mother is the child’s sole guardian: see “Father’s consent” below). For the mother’s consent to be effective it must be given at least 10 days after the birth of the child.

Parents and guardians can make their consent subject to conditions about the prospective parents’ religion and the child’s religious upbringing.

Once parents and guardians have consented, they cannot withdraw their consent while an application from the prospective parents is pending or until the prospective parents have had a reasonable opportunity to apply.

If the birth parent is the child’s sole guardian, then the father’s consent is not required. In that case, if the father objects to the adoption, he will need to become the legal parent or guardian of the child (see in this chapter, “Guardianship of children / Parents as guardians / When will a mother be a sole guardian?” and “How can a father become a guardian?”).

Partner of individual adopting

Adoption Act 1955, s 7(2)(b)

When a person is applying alone to adopt a child, their spouse must also consent to the adoption. However, this requirement doesn’t apply if the couple are currently separated and the separation is likely to continue.

Adoption Act 1955, s 11(b)

No. The child’s consent to the adoption isn’t required. However, the Family Court must consider the child’s wishes (taking into account their age and level of understanding) when deciding whether the adoption would promote the child’s welfare and interests.

When consent isn’t required

Adoption Act 1955, s 8

A parent’s or guardian’s consent isn’t required if:

  • the child has been abandoned, neglected or continually ill-treated or if there has been a failure to exercise the normal duty and care of parenthood, or
  • the parent or guardian is unfit on the grounds of physical or mental incapacity.

When a person’s consent is required under the Adoption Act, the need for their consent won’t be overridden simply because they are unreasonably withholding it.

When an individual is applying to adopt alone, the consent of the person’s spouse isn’t required if the couple are currently separated and the separation is likely to continue.

How to consent

Adoption Regulations 1959, reg 9; Schedule, Forms 2, 3

Consent must be given using a specific form. It must be witnessed by an independent lawyer, a registrar or a judge.

Next Section | The adoption process
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