People over the age of 18 years are able to be adopted in certain circumstances. Orders for the adoption of an adult must be applied for through the Youth Court of South Australia.
Definition of child for the purposes of adult adoption
Section 4 of the Adoption Act 1988 (the Act) defines “child” as including a person who is aged 18 years or more in respect of whom an order for adoption under the Act is sought or has been made. Therefore, official documentation will use the term “child” for these kinds of applications even though the person to be adopted is an adult.
What are the circumstances for an adult to be adopted?
An adoption order in relation to an adult may be granted by the Court if there was a significant parent to child relationship in existence between the intending adoptive parent or parents and the adult before they attained the age of 18 years. It is also a requirement that the adult to be adopted appears to understand the consequences of adoption on their interests, rights and welfare.
How does the Court determine the existence of a significant parent to child relationship?
In determining this, the Court may take into account:
- whether the child was cared for by the prospective adoptive parent or parents, or by the prospective adoptive parent and their deceased spouse or domestic partner, as their child prior to reaching the age of 18 years
- whether the child was, under the Children's Protection Act 1993, placed in the care of the prospective adoptive parent or parents, or the prospective adoptive parent and their deceased spouse or domestic partner, prior to reaching the age of 18 years.
Are there any other criteria necessary to adopt an adult?
Yes. These criteria are concerned with the relationship status of the person or persons who want to adopt the adult.
If there are two people who want to adopt the adult, they must have been living together in a 'qualifying relationship' for at least 5 years or if not, special circumstances must exist that justify the making of an adoption order.
If there is one applicant only, they must be in a 'qualifying relationship' with the birth or adoptive parent of the person to be adopted, or there must be special circumstances justifying the making of an adoption order.
A 'qualifying relationship' means the relationship between 2 persons who are living together in a marriage or marriage-like relationship (irrespective of their sex or gender identity).
Who must consent to an adult being adopted?
An adoption order cannot be granted unless the consent of certain people are provided or dispensed with (determined to not be required). The people who must consent to the adoption of an adult are:
- the person to be adopted
- their parents and/or guardians.
The people who are considering consenting to the adoption must be given a copy of an information brochure (PDF, 228.9 KB) by a Social Worker in Adoption Services of the Department for Child Protection to explain:
- the implications and consequences of consenting to the adoption
- the procedures and time limits related to giving consent or revoking (withdrawing) consent
- counselling and other support services available
- arrangements that may be made for the person as alternatives to adoption.
Who else may be involved in an application to adopt an adult?
When an application for an adoption order is lodged in the Court, the applicants must serve a notice of the application to the other parties. The other parties to an adoption application are: the person to be adopted and their parents and or guardians. Notice is served by providing them with a completed copy of the application form.
The parties and any other person who has a proper interest in the application may make submissions to the Court. 'Proper interest' is determined by the Court. An example of a person with a proper interest is a sibling of the person to be adopted.
What is the effect of an adoption order?
If the Court makes an adoption order, this means that all the rights and responsibilities of the parents who gave birth to the adopted person are legally removed and transferred to the adoptive parents. The adopted person becomes the legal child of the adoptive parents and the law views the adopted person as if they were born into the adoptive family. The adopted person has the same legal rights as any biological child of the adoptive family. Adoption is a permanent legal arrangement.
How do I make an application to adopt an adult?
A formal application (Form A1) must be made to the Youth Court of South Australia by the person/s who want to adopt the adult. Application forms are available on the Youth Court website.
The Court will either require documentation to say that the person to be adopted and their parents and or guardians consent to the adoption, or the Court will determine if the adoption should proceed without parental/guardian consent. Completed consent forms must be attached to the application.
Consents (and consent forms) can only be processed by Adoption Services of the Department for Child Protection as this involves counselling by a Social Worker to ensure that the people who are consenting understand the consequences of adoption. You will need to contact Adoption Services to make an appointment about this (see contact details below).
The Court will require evidence that you have served notice of the application on the other parties. This is in the form of an affidavit. Affidavit of Service forms are available on the website of the Youth Court (Form A6). Copies of this completed affidavit must be attached to the application.
Once the Court accepts the application, a date for a hearing will be provided. You and the person to be adopted must attend the hearing. The other parties may attend.
The Court may request a report by a Social Worker from Adoption Services of the Department for Child Protection. If so, the Social Worker will need to interview everyone concerned. The report will be provided to the Court by the Department and another hearing may be arranged.
It is advisable that you seek legal advice to assist you through the process.
The following fees are accurate as at 1 July 2019:
To The Youth Court of South Australia To the Department for Child Protection Application for an adoption order $184.00 Nil
For all functions associated with consent to adoption and, where necessary, the preparation of a report under section 22(1) of the Act (suitability to adopt the child).
For more information contact:
- The Youth Court of South Australia
Phone: (08) 8204 0331.
Youth Court website
- Adoption Services
Phone: 1800 512 355