How do I adopt a child from a non-Hague country?
G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers and I’m talking today about adoption and I’ve talked in a couple of other videos about adoption.
There’s been adoption through Hague countries, those countries which, like Australia, are parties to the 1993 Hague Inter-Country Adoption Convention. And those countries which are bilateral countries with Australia, they’ve got separate agreements, not through the Hague Convention, but direct country to country, South Korea and Taiwan.
Although, of course, the Chinese will say, Taiwan is not a country, they’ll say it’s a jurisdiction. But in this video, I’m not talking about those. I’m still talking about adoption, and it’s adoption from non-Hague countries.
And one of the things that is important to talk about adoption is because most family lawyers don’t cover adoption, and that’s not being critical of them. It’s just that adoptions are not common.
Somehow, I have done adoptions over my years, and it’s into the deep, dim path, somewhere between 20 or 30 years ago, I think, was my first adoption case. So they don’t come up often, but they do come up, and it’s important that you have someone, I think, who knows what they’re doing.
So one of the things you might be thinking of is you are looking at an adoption of a child who is in a non-Hague country. In other words, it’s a country that is not a party to the 1993 Hauge Inter-Country Adoption Convention, for example, Singapore.
It’s not a country that is a bilateral country or has a bilateral relationship with Australia, which are only two currently, which are South Korea and Taiwan. The first thing is to check whether adoption actually occurs there, and if it does occur there, whether Australia will accept children from there.
So, for example, in the past, Australia would regularly have children adopted from Ethiopia. Then it was discovered that children were being trafficked in Ethiopia for the purposes of adoption.
So no surprise, Australia said, no, we will not accept children from Ethiopia. So it’s important to know whether a child born or living in that overseas country can be adopted. In many countries that are Muslim countries, adoption is not known, it’s not a concept.
What we know as adoption is an alien concept in those countries, it just doesn’t happen, at least not in a formal sense, and in South Pacific countries, there is what is called traditional adoption.
In most of those countries, and we see it in Australia with Torres Strait Islanders, and Torres Strait Islander adoptions have for a long time been recognised in Queensland. There was a gap of about 10 years where they weren’t recognised, and I’m pleased to say that they are again recognised.
But in South Sea Island countries, those traditional adoptions may or may not be recognised locally under the law. It’s important to know because you may think you’re adopting, and everyone around you may think that you’re adopting.
But if you haven’t followed the legal form, if you’ve just followed the traditional approaches, it may not be an adoption that’s recognised here. If there is an overseas adoption, the Family Law Act is quite clear that you’re recognised as the parents, no question about it.
Because the Family Law Act says that if an adoption occurs anywhere within Australia or elsewhere, and it’s recognised under the law, then the adoptive parent of the adoptive child, I think I’ve doubled up on that, but you get the point, is a parent for the purposes of Australian law.
You may think, Okay, well, I’m a parent, I’m a legal parent of a child. Therefore, the child can live in Australia. No, that won’t work unless you fit the requirements of the migration regulations, and these, in turn require compliance, if necessary, with state and territory adoption laws.
What Australians can’t do is they can’t do a Madonna. You may remember it, she was living in London, she fired up the private jet, and off she went, off to Malawi in Southern Africa, scooped up a child, got back in the jet, and flew home, and hence she’d done an adoption.
Australians cannot do that. The migration regulations are quite clear, and some of our state and territory adoption laws are also quite clear, that if you do that, it will not be recognised.
The migration regulations, I should say, say that you must live overseas for a minimum of 12 months, in other words, a year, at the time that you’re doing this. It doesn’t say that you’ve got to live in that country.
You could live in another country, so you might do an adoption in country A, but you live in country B. What’s underlying the migration regulations is not to do a Madonna, that you fly over there or go over there for the purposes of adoption.
If you’re over there for the purposes of work, for example, or family connexions, it’s got to be not an artifice. The reality is that you’re there, for example, you’re an aid worker somewhere else in another country to help others, and you happen to adopt at that point, then that adoption with care will be recognised in Australia and the appropriate visa can be given.
So recognise for all purposes of the law here and visa given. The message I want to give is that what you don’t want to do, and I’ve seen too often, is you go over there, you do the adoption, and then discover, ‘Whoops, I am the parent of this child. I’m recognised over there, but I cannot get the child back here, ‘ don’t do that. What you should do instead is get legal advice at the beginning.
Consult with as well your state and territory adoption Department or adoption service provider to see what the rules are, because they will probably have to communicate with the overseas country.
They may deal with the central authority over there. But of course, it may depend how long you’re living over there. If you’ve been living, for example, in the United States for many years, then that adoption might be recognised here.
Although that’s a tricky one because if an adoption compliance certificate hasn’t been given, then the adoption, and because you’re habitually resident over there, you’re not recognised under the Hague, it’s a bit messy.
The law in this area is a bit messy, and it’s a bit like walking through a minefield. So clear bits of advice from me in this video. Get advice at the beginning, get legal advice at the beginning.
Talk to the Department as well after you have got that legal advice so that you are informed and then can make informed decisions about what you intend to do rather than heading off on a jaunt and getting it terribly wrong.