If you want to adopt a children from overseas into Australia, you do not only need to think about the adoption process but also that child’s visa into Australia. To learn more about intercountry adoption, visit the Intercountry Adoption Australia website linked below.
The visa you should be learning about is the Adoption visa (subclass 102). In broad terms, the Adoption 102 visa allows for the permanent migration of a child who is:
- Adopted or to be adopted, with the involvement of an Australian State/Territory central adoption authority (STCAA) under
- The Hague Adoption Convention, or
- A bilateral adoption agreement with a competent authority of another country, or
- Another adoption agreement
- Adopted by expatriate Australians who have been living outside Australia for more than 12 months before making the Adoption 102 visa application
The child must be outside of Australia for the visa to be granted.
What is the Hague Adoption Convention?
The full title of the Hague Adoption Convention is The Hague Convention on Protection and Cooperation in Respect of Intercountry Adoption.
The Hague Adoption Convention exists to protect children concerned and to apply consistent law and process. It also aims to establish a system of cooperation among contracting countries to ensure this as well as to secure recognition of adoptions made in accordance with the Convention in the contracting states.
A Hague Adoption Convention adoption is one that must be organised by the central adoption authority (CAA) in both countries. This is important to not because a private adoption without the assistance of the relevant CAAs is not a Hague Adoption Convention adoption, even if the adoption occurred between two contracting countries.
How it works
- The state of origin is responsible for determining that the child is free for adoption, that necessary consent has been received from the child’s parent/guardian, and that intercountry adoption is in the best interests of that child
- The receiving state is responsible for assessing the prospective adoptive parents as suitable parents, and ensuring that the child is, or will be, authorised to enter and remain permanently in the receiving state
- Both states must agree to the adoption before it takes place and the CAA of the state where the adoption takes place must certify the adoption as having been made in accordance with the requirements of the Hague Adoption Convention.
Types of adoption
A basic understanding of the different types matters as they result in slightly different visa requirements.
There are four types of adoptions under the Hague Adoption Convention being:
Full adoption: (involving the CAAs of Australia and another Convention country), where the adoption takes place in a Convention country other than Australia and are evidenced by an adoption compliance certificate (ACC) (currently only Chile, Colombia, Lithuania, People’s Republic of China and Sri Lanka) and adoptions are finalised before the child enters Australia.
Simple adoption: (involving an Australian STCAA and another Convention country), where the country’s adoption laws do not sever the child’s legal ties to the birth parents, but the country’s CAA approve the child to come to Australia where the adoption is finalised (currently only Thailand).
Guardianship arrangements: (involving an Australian STCAA and another Convention country’s CAA), where the adoption is finalised in Australia after a placement period in Australia under relevant Australian STCAA monitoring and reporting to the other country’s CAA and no problems have occurred (currently only Hong Kong and the Philippines)
Third country Convention adoption: where Australian adoptive parents habitually resident in a Convention country other than Australia, adopt from another Convention country (not Australia) and an ACC has been issued.
What is a bilateral adoption agreement?
Bilateral adoption arrangements are adoption programs negotiated with another country that is not a party to the Hague Adoption Convention. These arrangements are intended to ensure that, where other countries are not parties to the Hague Adoption Convention, children for adoption are protected from being bought or sold. In addition, families who wish to adopt a child from outside Australia can be assured that the child is legally available for adoption.
Such adoptions are recognised under Australian law. This means that there is no need for adoptive parents to seek further recognition of the adoption in Australia.
What is the role of an STCAA?
STCAAs are responsible for individual intercountry adoptions. They:
- Manage, in conjunction with the relevant CAA outside Australia, arrangements for adopting children from outside Australia, including assessing and approving prospective adoptive parents and monitoring and reporting to relevant CAAs outside Australia on individual adoption cases as required
- Negotiate with CAAs outside Australia regarding new or existing intercountry programs concerned with placing children for adoption in Australia.
Adoptions arranged with the involvement of an STCAA
One wishing to adopt a child from overseas must generally apply through the intercountry adoption service in their State/Territory. Each State/Territory’s eligibility requirements for adoptions of children outside Australia may differ and include factors such as:
- Relationship status
- Other factors
These eligibility requirements are there to protect the interests of the child by ensuring the suitability of the adoptive parents and minimising the possibility of baby trafficking, kidnapping of children and coercion of birth families. This may sound extreme to you, but it is a sad and unfortunate problem that exists, especially in some countries.
The country from which you are wishing to adopt a child from, will also have their own requirements which must be met in addition to Australia’s adoption requirements. Only after all the requirements are met and the adoptive parents approved, can the parents then apply for the Adoption 102 visa.
Expatriate (private) adoption by Australians resident overseas
If you have been residing outside of Australia and have adopted a child whilst overseas, the Adoption 102 visa may be granted if you overseas for more than 12 months.
Adoption visa categories
One of the following four provisions must be met in the application for an Adoption 102 visa:
Expatriate (private) overseas adoptions: Child adopted under private arrangements by an expatriate Australian/s living outside Australia for more than 12 months at time of application.
STCCA arranged adoptions: Child allocated for adoption to parent/s approved by an Australian STCAA under an agreement other than a Hague Adoption Convention adoption or a bilateral adoption arrangement. The adoption takes place in Australia after a period of supervision (usually 12 months).
Hague Adoption Convention adoptions/bilateral adoption arrangement: Child adopted or allocated for adoption under the Hague Adoption Convention or a bilateral adoption arrangement (to parent/s approved by an Australian STCAA. A Hague Adoption Convention adoption may be finalised outside Australia or in Australia.
Third country Hague Adoption Convention adoptions: Child adopted under the provisions of the Hague Adoption Convention, between the central adoption authorities of two Hague Adoption Convention countries other than Australia. This type of adoption is informally referred to as a third country Hague adoption.
The successful application of the Adoption 102 visa requires that:
- The sponsors are not sponsors of concern – that is that the sponsor or partner of the sponsor cannot have unresolved charges or convictions for registrable offences
- The adoption must be legal
- Health requirements met
- Continued eligibility – no changes to the family unit as a result of birth, death or change in relationship status
Adoption is legal
This requirement is taken to be met when the adoption takes place under the Hague Adoption Convention or a bilateral adoption arrangement. For STCAA adoptions, this is satisfied if the competent authority in the overseas country has supported any adoption order granted in that country. For private adoptions, the adoption order must comply with relevant laws.
In our next article we will write about the specific situations that an adoption falls under and what the requirements for that category is. From there we will go on talk about the adopted child’s citizenship outlook based upon how that child was adopted.
The adoption process is difficult enough without considering the visa aspect. We encourage you to speak to us further about your visa needs, as we will be able to advise you on what your best routes are as will as timelines. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.