Children’s rights in adoption from out-of-home care: how well do legislative frameworks accommodate them?

ABSTRACT This paper focuses on the Australian legislative, policy and procedural framework regulating adoption from out-of-home care (OOHC) and the relationship to children’s rights. As a signatory to the United Nations Conventions on the Rights of the Child, Australia has agreed to respect, protect and fulfil children’s rights. However, because child protection is a State and Territory responsibility, these frameworks lack consistency in the way that decisions are made or how children’s interests are protected. We draw on findings from a qualitative study that examined Australian adoption laws and policies and consider how these align with a rights-based approach to adoption from OOHC. These were examined through the lens of values perspectives, which helped clarify how children’s rights including birth family relationships, identity and participation were represented. The results highlighted that some rights were treated in a discretionary manner, key differences in the extent to which jurisdictions protected, respected and fulfiled these rights and the conditions that determined when they were carried out. Notably, some jurisdictions were not adequately adhering to rights related to children’s participation in the adoption process or protecting and respecting rights to identity, culture and family relationships, especially in the context of Aboriginal and Torres Strait Islander people. The findings confirm the need to uphold children’s rights through policy and in practice.