A change in adoption practice: the appointment of lawyers for children

The Adoption Act 2000 (NSW) (‘the Act’) governs the making of adoption orders in the Supreme Court of NSW. The making of an adoption order marks the permanent transfer of legal rights and responsibilities from birth parents to adoptive parents and has a profound impact on a child’s life.

The Act has included a regime for the representation of children since its inception almost 25 years ago. Despite this, there have been very few cases where a lawyer has been appointed for a child in adoption proceedings.

As a result, there is a dearth of case law shedding light on the circumstances in which a lawyer should be appointed for a child. Following the re-issuing of the Supreme Court Practice Note SC Eq 13 – Adoptions, which commenced on 10 February 2025, practitioners now have a better understanding of the circumstances which, in the Court’s mind, may warrant the appointment of a lawyer for a child. The Practice Note also clarifies the ways in which the Court will seek to hear the voice of a child when determining adoption proceedings.

The commencement of the revised Practice Note coincides with a recent increase in the appointment of lawyers for children in adoption proceedings. Both are welcome developments given the significance of an adoption order to a child’s life.

The participation of children in proceedings under the Adoption Act

An important principle underlying the Act is that children should participate in decisions that will have a significant impact on their future. Decision makers must ensure that children are given adequate information and are assisted to understand that information. Children must also be given an opportunity to express their views freely and appropriate weight must be given to their views.

In determining whether to make an adoption order, the Court will also need to consider other matters under the Act, including the arrangements for birth family contact, the provisions of any adoption plan or cultural plan and whether the child’s name should be changed.

Ultimately, in conjunction with several other prerequisites, the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.

The appointment of lawyers for children

Section 122 of the Act deals with the appointment of lawyers for children.  If a guardian ad litem has been appointed for a child then the Court must appoint a lawyer for the child. If a guardian ad litem has not been appointed, the Court may appoint a lawyer to represent the child if the Court believes the child requires representation.

Although the Act is silent on when such a need may arise, the revised Practice Note now includes nine examples of when the Court would be inclined to appoint a lawyer for a child, including situations where:

1. there is a high level of conflict between the birth family, the proposed adoptive parents, or the agency with case management;
2. credible allegations have been made about the capacity and ability of the proposed adoptive parents to provide long term care for the child;
3. the adoption involves a child being separated from their siblings, particularly if they have previously lived with their siblings or their siblings are living with birth parents or extended family;
4. a lawyer may be able to assist in the development of, or revision of, the Adoption Plan; or
5. the child is over 12.

The Practice Note also includes four examples of where the Court will appoint a lawyer, unless good reason is shown to the contrary, and subject to any views expressed by the child. Examples include where the child is Aboriginal or there is a dispute as to whether the child is an Aboriginal child within the meaning of the Act, and where an application has been made to discharge an adoption order for a child.

When determining whether to appoint a legal representative for a child, the Court will have regard to 11 factors set out in the Practice Note including the age and capacity of the child, the extent to which the adoption is opposed and any expressed wish of the child to have a separate voice in the proceedings.

The role of a lawyer representing a child in adoption proceedings

Where the Court makes an order for the appointment of a lawyer for a child, Legal Aid NSW will allocate the matter to an experienced solicitor with specific training in the representation of children.

Unless acting on the instructions of a guardian ad litem, the lawyer appointed will either act on the direct instructions of the child or, alternatively, act as a separate representative requiring them to make submissions to the Court for orders they consider appropriate for the child.

The Act includes a rebuttable presumption that a child 10 years of age or older is capable of instructing a lawyer. A lawyer who has been appointed to represent a child may make an application for a declaration that a child less than 10 years old is capable of giving instructions, or that a child aged 10 or over is incapable of giving instructions and that the lawyer is to act as a separate representative for the child.

No matter the mode of representation, the lawyer plays a critical role in explaining the nature of the proceedings to a child and ensuring all relevant evidence is submitted and tested where necessary.

Crucially, the lawyer ensures the Court has the benefit of hearing the child’s voice, if the child wants to express views in relation to the adoption. The Practice Note acknowledges that the voice of a child could be heard by way of evidence given by the child in Court, including via AVL, but could also include other communication to the Court including visual representations which reflect the child’s voice. Where a child wishes to give evidence, the Practice Note provides that the Court will, in consultation with the child’s lawyer, make such directions as are appropriate to ensure the child is guided and protected during that process.

The Practice Note’s focus on the participation of children will, it is hoped, see a continued increase in the number of children supported by lawyers as they navigate the adoption process.

Kerri Phillips and Matthew Levy are solicitors in the Appeals and Complex Litigation Unit, Family Law Division, Legal Aid NSW