H v Department of Communities (Adoption Services)
[2010] QCAT 684
•10 October 2010
| CITATION: | H v Department of Communities (Adoption Services) [2010] QCAT 684 | |
| PARTIES: | Mr H and Ms H | |
| v | ||
| Department of Communities (Adoption Services) | ||
| APPLICATION NUMBER: | CML134-10 |
| MATTER TYPE: | Adoption matters |
| HEARING DATE: | 10 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julie Ford, Presiding Member Patricia Hanly, Member Ron Joachim, Member |
| DELIVERED ON: | 10 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The stay is not granted. The review application of the decision to remove Mr and Ms H’s names from the suitable adoptive parents register is dismissed pursuant to section 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal prohibits the publication of the names of the applicants in the decision relating to application number CML134-10. |
| CATCHWORDS : | Suitability register; overseas adoption; policy in China; Queensland Civil and Administrative Tribunal Act 2009 s 66; public interest, right to privacy of applicants |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr H and Ms H |
| RESPONDENT: | Michael Coutts, Manager, Victoria Van Houdt, Team Leader, Helen Tooth, Court Services Unit |
REASONS FOR DECISION
The Adoption Act 2009 (the Act) commenced on 1 February 2010 and it had the effect of making ineligible many applicants who were on the suitable parents register, on the expression of interest register or who had applied to adopt their step child.
On 27 July 2010 the Acting Director for the Department of Communities (Adoption Services) made a decision to remove the names of Mr and Ms H from the suitable adoptive parents register. This decision was made as section 76 of the Act precludes a couple remaining on either the expression of interest register or the suitable adoptive parents register if they have a child aged less than one year in their custody.
The Chief Executive must remove a person’s name from the suitable adoptive parents register, pursuant to section 146 of the Act, if a person is not eligible. The legislation does not allow for the Chief Executive to exercise any discretion with the decision-making process.
Mr and Ms H’s son was born in December 2009. This meant that, when the Act was enacted on 1 February 2010, they did not meet the eligibility requirement as they now had a child less than one year of age.
A further complication is that, with the birth of their son, Mr and Ms H did not meet also the eligibility requirements outlined by the China Centre of Adoption Affairs due to having a child under the age of one year. The Department has an obligation to inform the China Centre for Adoption Affairs of the change of circumstances in a timely manner.
On 20 August 2010 the Tribunal received an application to stay the Department’s decision and to review that decision.
Mr and Ms H’s submissions
Mr and Ms H had begun the adoption process in mid 2006. They had committed to adopting a child from China, had learned the language, and had lived and worked for a time in China. Essentially they had embraced the Chinese culture and had strong links with the Chinese adoption community.
Early in 2009 Mr and Ms H had considered the then current wait times and referral rates from the China Centre for Adoption Affairs and concluded there were still many years before they would be allocated their baby from China. Ms H would be in her late thirties before trying for a biological child if they were to wait until the adoption took place.
Mr and Ms H originally sought for the Department to exercise its discretion and not remove their names from the register. As the decision by the Department was made on 27 July 2010, it was only a six month period before they would be eligible again as their son would be one year old on 9 December 2010. To them it made no sense to remove their file on the basis of a temporary ineligibility. Nothing regarding their intent to adopt had changed. Removing their names from the register would require them to start the process again from the beginning, where they were four years ago. Such a time lapse would result in an even larger age gap between their biological and adopted children, which would not be in the best interests of the adopted child.
[10] Mr and Ms H were hopeful that the removal of their names from the register of suitable adoptive parents could be halted. They submitted a stay application to the Tribunal. They were seeking a more positive, workable, family friendly decision to be reached.
[11] Mr and Ms H understood that the adoption process in China was different. The allocation of a child at any moment is not currently possible with an adoption from China as China works on a chronological basis for referrals and allocation is never a surprise phone call. It is a systematic process and couples know when their referral date is approaching. If Mr and Ms H were able to keep their names on the Queensland register then they should not have their file pulled in China.
[12] To Mr and Ms H this case demonstrated the ineffectiveness of applying generic legislation to both local and inter country adoption. The new Act does not consider people in their circumstances, committed to a blended family, of both adopted and biological children. The legislation supported couples who have already had their biological children and are looking to build their family through adoption; couples who are unable to have biological children; and couples who do not want to have biological children and only want to adopt.
[13] Mr and Ms H were seeking amendments to the legislation to consider personal circumstances such as theirs. They were seeking leadership within the Department to address these issues.
The Department’s submissions
[14] The Department acknowledged the commitment by Mr and Ms H to adopting a child from China and demonstrated sympathy for their circumstances. However, the Department does not have a discretionary power. As Mr and Ms H are ineligible to remain on the register, as they have a baby under one year old, they do not meet the China Centre for Adoption Affairs requirements either. The Department has an obligation, pursuant to section 115 of the Act, to inform the Centre of the change of circumstances in a timely manner. It would not support a hold for a six month period on their dossier in China.
[15] The Department was prepared to write a letter to the Centre advising the Centre of why Mr and Ms H were removed from the Queensland register, due to the change in legislation. This letter would reflect positively on them personally as prospective adoptive parents, although currently constrained regarding the eligibility requirement, with a baby under one year old.
[16] Mr and Ms H had been successful in the assessment process and China should know this categorically. The Department was happy to consult with Mr and Ms H about the content of the letter and attach one written by them as well. The Department reiterated that it must abide by its obligation to inform China of a change of circumstances.
The Tribunal’s findings
[17] The Tribunal is similarly constrained in its decision-making. It does not have a discretionary power with regard to the applications. The Tribunal is bound by the same legislation as the Department. Once the Department was made aware that Mr and Ms H had a child under one year old, it was required to address this change in circumstances because of the following provisions of the Act.
[18] Pursuant to section 146(1)(a) of the Act the Chief Executive must remove a person’s name from the suitable adoptive parents register if the person is not eligible to have his or her name remain on the expression of interest register under section 76.
[19] Section 76 of the Act provides that a person is eligible to have his or her name entered or remain in the expression of interest register if that person meets certain criteria, one of which is that the person does not have custody of a child less than one year.
[20] Mr and Ms H do not meet this requirement.
[21] While section 319(d) of the Act allows for a person to apply to the Tribunal for a review of the decision, the Tribunal is unable to exercise any discretion either. The facts are clear. Mr and Mrs H have a child under one year old, which makes them ineligible. The Tribunal cannot order the Department to withhold information it is required to release to the China Centre for Adoption Affairs where there has been a change of circumstances. The Centre’s policy is also clear in that it will accept and review adoption applications of foreign adopters if the youngest child has reached the age of one year old.
[22] For the reasons outlined above, the Tribunal cannot grant a stay. Mr and Ms H accepted the legal issues and also the offer to be involved in the drafting of the letter to the Centre in China. They accepted that the review application be dismissed by the Tribunal pursuant to section 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
[23] The Tribunal notes the functions of the President in section 172 of the QCAT Act. It includes in subsection (3)(b) a function to advise the Minister about how this Act, or an enabling Act, could be made more effective.
[24] The Tribunal will recommend to the President that he draws this matter to the attention of the Attorney-General, with a view to consideration by the Chief Executive, Department of Communities having some discretion in respect of section 146 of the Act.
Reasons for non-publication order
[25] The Tribunal is satisfied that the publication of the names of the applicants should be prohibited, pursuant to section 66 of the QCAT Act.
[26] The Tribunal is able to act under subsection (1) on its own initiative. The parties did not oppose this decision. The applicants have a right to privacy regarding this review decision. The legislation prohibits the applicants from achieving their aim to adopt a child from China while their son is aged under one year. Mr and Ms H otherwise remain suitable as adoptive parents. They have not acted improperly. The public interest is not served by their being identified in these reasons.
[27] The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public access to the decisions made by the Tribunal in adoption matters and the reasons for the decisions. The publication of this decision and the reasons will occur, albeit de-identified.
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