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Changes to discharging adoption orders

The Adoption (Review) Amendment Act 2016 has enabled the Youth Court of South Australia to discharge an adoption order on the grounds that it is in the best interests of the adopted person to do so.

This change to the law is expected to come into effect in mid-2018.

What does 'discharge of an adoption order' mean? 

'Discharge of an adoption order' means the undoing or removing of the legal effect of an adoption order. 

If the Court makes an Order to discharge an adoption, then the adoption ceases to exist and the person is no longer an adopted person or legally connected to the family that adopted them. They become legally reconnected to their birth family. 

What are the circumstances that could lead to the discharge of an adoption order?

Adoption orders may be discharged by the Court on the grounds that to do so  is in the best interests of the adopted person, taking into account their rights and welfare. 

An adoption order may also be discharged where the order, or consent to the adoption order, was obtained by fraud, duress or other improper means.

A discharge Order can be sought by an adopted person, a birth parent, an adoptive parent, or the Chief Executive of the Department for Child Protection. 

It is recommended that you seek independent legal advice in relation to discharging an adoption order.

Who can apply for the discharge of an adoption order?

An application for a discharge can be made by an 'eligible person'. 

An 'eligible person' is defined as: 

  1. the adopted person to whom an adoption order relates;
  2. a birth parent of the adopted person;
  3. an adoptive parent of the adopted person; and
  4. the Chief Executive of the Department for Child Protection. 

Can I apply for a discharge if my adoption order was made under the 1966 Adoption Act or an older Act?

Yes - the recent changes to adoption law apply to any adoption order granted in South Australia under any Adoption Act that was the law at the time. 

Do I have to tell my adoptive parents or my birth parents that I want to discharge my adoption order, and do I need their consent?

The consent of birth parents and adoptive parents is not required for the Court to make a discharge Order. However, the other parties to the adoption may oppose the application for the discharge of an adoption Order. In such cases the application may proceed to a contested hearing in the Court.

You will need to serve the other parties to the adoption with any application to discharge an adoption. This includes adoptive parents and birth parents. 

It is recommended that you seek independent legal advice in relation to discharging an adoption order.

If my adoption is discharged, what happens to my birth certificate? Do I need to get a new one? Who is named as my parents?

If your adoption order is discharged, this will mean that your birth parents will once again become your legal parents, and your adoptive parents will cease to be your legal parents. 

You will need a new birth certificate because your post-adoption birth certificate is no longer correct, as the adoptive parents are no longer your parents at law. 

On making a discharge order, the Court may make orders in relation to  your entry on the Register of Births and to your name. 

If the adoption order is discharged by the Court, an adopted person may seek an Order for their birth certificate to be amended to reflect this change.

It is recommended that you seek independent legal advice about how discharging your adoption order may impact on your situation.

I am an intercountry adoptee. Can my adoption order be discharged? Will this affect my citizenship?

If you are an intercountry adoptee, you can apply for the discharge of your adoption order. There may be particular legal issues depending on what country you were adopted from. 

Anything that lawfully occurred as a result of your adoption - such as obtaining Australian citizenship - should not be affected by your adoption order being discharged. 

It is recommended that you seek independent legal advice about how discharging your adoption order may impact on your situation. 

What is the process for applying for the discharge of an adoption order?

A formal application needs to be made to the Court. Application forms are available from the Court website.

During the adoption proceedings, the Court may require the Department for Child Protection to conduct an investigation about the application and prepare a report for the Court’s consideration. The person making the application should  meet with a social worker from the department as part of the investigation. 

The purpose of the investigation is to assist the Court to determine the implications for the adopted person's welfare, interests and rights that might flow from the proposed discharge.

A social worker may contact several people where appropriate and necessary to complete the report for the Court. This may include members of the adopted person's birth and adoptive families, and other significant people in their lives.

Who can I talk to about the possible discharge of my adoption order?

If you want to talk to someone from Adoption Services in the department about having your adoption Order discharged, you can call  (08) 8463 3666. 

You can also talk with someone at the Post Adoption Support Services (Relationships Australia SA) on (08) 8245 8100. 

It is recommended that you seek independent legal advice in relation to discharging an adoption order.

Disclaimer: 

This content contains information in relation to adoptions in South Australia. It is intended to provide general guidance only and does not constitute legal advice. It is not intended to be a substitute for the official version of any Act, Regulation, or other instruments. This content was prepared in December 2017 and may refer to legislation that has been amended or repealed and/or Government policy that has subsequently changed.  When considering the information contained in this content you should always inform yourself about the current applicable laws and policies, and you should seek your own independent legal advice.

Although every effort has been made to ensure the information contained in this publication is free from error and/or omissions, no warranty, express or implied, is given as to the completeness, correctness, accuracy, reliability or currency of the information contained in this content. The Crown in the right of the State of South Australia does not accept any responsibility and will not be held liable to any recipient of the information for any loss or damage, however caused and whether in whole or in part, which may be directly or indirectly suffered as a consequence of the use of this content.

Adoption Support

To talk to someone about getting support for how these changes might affect you, you can contact:

Post Adoption Support Services (non-government)

Email: passinfo [at] rasa.org.au
Phone: (08) 8245 8100

Department for Child Protection Adoption Services (government)

Email: adoptions [at] sa.gov.au
Phone: 8463 3666

Adoption Act Review Office

Policy staff are available to help you with your queries about the Act. 

Email: DECDFamiliesAdoptionReview [at] sa.gov.au
Phone: 8226 6840