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Fact Sheet 36 - Adopting a Child from Outside Australia

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This fact sheet provides information about visa, guardianship and citizenship requirements for children who are adopted from outside Australia by Australian citizens, holders of an Australian permanent visa or eligible New Zealand citizens. 

Prospective adoptive parents must follow correct adoption procedures to ensure that the child can meet visa and/or citizenship requirements. If not, the child may not be able to enter Australia even if the adoption has already occurred. 

The Department of Immigration and Border Protection cannot help with adoption arrangements. The department's role is to assess and decide applications for visas in accordance with Australian immigration law.

The Australian Government Attorney-General's Department is the Australian Central Authority under the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (the Hague Convention) and is responsible for the establishment and management of Australia's intercountry adoption arrangements.

The Australian Central Authority works closely with state and territory central authorities, who are responsible for the delivery of intercountry adoption services, including the processing of individual adoption applications and assessment of prospective adoptive parents' suitability to adopt.

If you live in Australia and are considering adopting a child from overseas, contact your state or territory central authority. 
See: Australian, state and territory central authorities

Hague Convention

The Hague Convention was approved by Australia on 25 August 1998 and came into force in Australia on 1 December 1998. It is implemented in Australia by the Family Law Act 1975and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

The objectives of the Hague Convention are to eliminate abduction, trafficking or sale of children, and to make sure that intercountry adoptions take place in the best interests of the children, and according to consistent law and practices. State and territory adoption legislation and Australia's immigration laws are designed to uphold the principles of this convention.

Adoption visa

An Adoption (subclass 102) visa is for a child who has been adopted outside Australia by an Australian citizen, the holder of an Australian permanent visa or an eligible New Zealand citizen. The intercountry adoption must have been arranged through an Australian state or territory central authority.

The only circumstance where an adoption visa may be granted to a child adopted privately from outside Australia is where the Australian citizen or permanent resident adoptive parents have been living outside Australia for more than 12 months at the time they made the visa application. This type of adoption is known as an 'expatriate adoption' and has specific legal requirements that must be met for the grant of an adoption visa (see 'Private and Expatriate Adoptions' below).

To be eligible for an adoption visa, the child must be outside Australia when applying for the visa and be under 18 years of age at the time of application and the time of the decision. The child must meet the health requirement before the visa can be granted.  If the child does not meet the health requirement and no waiver of the health requirement is given, the adoption visa will be refused and the visa application charge can neither be refunded nor transferred to another child.

If a child is adopted outside Australia before their parents become Australian citizens, holders of a permanent visa or eligible New Zealand citizens, please refer to information on the Child (Subclass 802) visa.
See: Booklet 2 – Child Migration (542KB PDF file)

State and territory supported adoptions

Adoptions of children from outside Australia arranged by state and territory central authorities are known as intercountry adoptions. Australia has intercountry adoption programs with a number of countries. Programs are conducted under either:

  • the Hague Convention—between Australia and another country which has ratified the convention
  • bilateral arrangements—made between Australia and another country.

The eligibility requirements for overseas adoptions are different in each state and territory and may include criteria concerning partner relationship status, age, citizenship and health.

Where the prospective adoptive parents know or are related to the child (known as 'relative or known adoptions'), state and territory central authorities consider these adoptions on a case by case basis and conduct them in accordance with the Hague Convention and relevant state or territory legislation. In practice, relative and known child adoptions will only be facilitated in a very limited number of cases. 

Adoption procedures vary depending on the country and the category under which the adoption takes place. You should contact your state or territory central authority for advice on the procedures in place. 
See: Australian, state and territory central authorities

Private and expatriate adoption

Private adoption

Private adoption occurs when an Australian citizen or permanent resident who is 'habitually resident' in Australia adopts a child from outside Australia without applying to their state or territory central authority. Private adoption arrangements are illegal in most states and territories and are not supported by state and territory central authorities. Under the Hague Convention, prospective adoptive parents seeking to adopt from an overseas country must apply to the central authority in the country in which they are 'habitually resident'. 

The following types of applicants living in Australia are generally considered to be 'habitually resident' in Australia for the purposes of commencing an intercountry adoption under the Hague Convention:

  • Australian citizens and permanent residents
  • a single applicant who is an Australian citizen or permanent resident but also holds citizenship of, or rights to permanent residency in, another country
  • joint applicants, where at least one is an Australian citizen or permanent resident regardless of whether one or both hold citizenship of, or rights to permanent residency in, another country.

The Australian government strongly cautions applicants habitually resident in Australia against pursuing private adoptions overseas, even if they also hold citizenship or rights to permanent residency in that particular country. Families in these circumstances should contact their state or territory central authority before proceeding with any adoption application with an overseas authority.

The department will refuse a child a visa to enter Australia unless the adoption arrangement meets all visa requirements even if the adoption has already occurred and is lawful in the overseas country. The only circumstance where a visa may be granted to a child adopted privately overseas is where the adoptive parents' circumstances meet specific requirements such as those relating to expatriate adoptions (see below).

Further information on intercountry adoptions can be found on the Attorney-General's Department website.

Expatriate adoption

Expatriate adoption occurs when an Australian living abroad adopts a child from the country in which he or she is resident. The adoption occurs through the overseas country's domestic processes and is finalised in that country. Expatriate adoption can also include third country adoption, where an Australian living abroad in Country 'B' adopts a child from Country 'C'.

The only circumstance where an adoption visa may be granted to a child adopted privately overseas is where the adoptive parents have been living outside Australia for more than 12 months at the time of visa application. The adoptive parents must meet specific legal requirements for expatriate adoption, including:

  • their residence overseas was not contrived to deliberately bypass any requirements concerning entry of adopted children into Australia
  • they have lawfully acquired full and permanent parental rights by the child's adoption. This means that the adoption order must sever the legal relationship between the child and their natural parents
  • the relevant authorities in the overseas country have approved the child's departure to Australia.

The child also needs to meet the standard visa requirements including health criteria.

For further information please refer to a joint fact sheet from the department and the Attorney General's Department.
See: Fact Sheet – Expatriate Adoption ( 40KB PDF file)

Caution

State and territory central authorities do not generally help sponsors to meet adoption visa requirements.

'Full and permanent' adoption does not exist in the laws of some countries, for example, many Islamic countries. An adoption order that does not grant full parental rights to the adoptive parents is not acceptable for the grant of an Australian visa.

If you wish to proceed with an adoption that has not been arranged by your state or territory central authority, it is strongly recommended you first seek legal advice both in Australia and in the overseas country.

You must ensure the adoption meets all visa requirements in order for the child to be eligible to enter Australia. There is no provision to grant a visa to a child who does not meet all visa requirements, even if the adoption has already occurred and is lawful in that other country.

Guardianship of children

Intercountry adoptions by Australian citizens and permanent residents are not automatically recognised under Australian law in all circumstances. An exception may be adoptions completed outside Australia under the Hague Convention. In the case of other adoptions, once the adopted child has entered Australia, adoptive parents can apply to an Australian court to be recognised as parents of the child under Australian law.

A child who enters Australia holding an adoption visa where the adoption is to be finalised in Australia, or where the adoption is not recognised, is officially under the guardianship of the Minister for Immigration and Border Protection. This guardianship is delegated to state and territory welfare authorities and is set down in the Immigration (Guardianship of Children) Act 1946 (the IGOC Act). The IGOC Act provides a framework for state and territory governments to supervise the adoption process in Australia and ensure that arrangements are in the best interests of the child.

You will be advised when a decision is being made on the child's visa application as to whether the child falls within these guardianship provisions, and what action you should take. The relevant state or territory central authority may also be advised of the child's details.

The guardianship arrangements cease to apply once the child obtains Australian citizenship, or the child turns 18 years of age or in most cases when an Australian adoption order is made for the child.

Australian citizenship

The way in which an adopted child becomes an Australian citizen depends on the adoption process.

When an adoption is finalised in Australia

Where an adoption order is made under Australian law after the child arrives in Australia as a permanent resident, and at least one of the adoptive parents is an Australian citizen, the child will automatically acquire Australian citizenship. An application for Australian citizenship is not required, but parents may apply for evidence of Australian citizenship at any office of the department.
See: Form 119 Application for evidence of Australian citizenship (234 kB pdf file)

When an adoption is finalised overseas

A child adopted outside Australia by an Australian citizen under the Hague Convention may be eligible to become an Australian citizen (without the need to apply for and be granted an adoption visa) if an adoption compliance certificate has been issued and the adoption is recognised under Australian law. Citizenship applications can be lodged overseas or once the child is in Australia.
See: Form 1272 Application for Australian citizenship for children adopted under full Hague Convention arrangements

A child adopted overseas by an Australian citizen under arrangements other than a full Hague Convention adoption may be eligible to apply for Australian citizenship by conferral. The child must hold a visa that permits them to reside permanently in Australia. Applications can be lodged outside Australia or once the child is in Australia.
See: Form 1290 Application for Australian citizenship by conferral – Other situations (232KB PDF file)

Other information

Further information on Australian citizenship is available on the citizenship enquiry line and website.
Telephone: 131 880
See: Australian Citizenship

Fact Sheet 36. Produced by the National Communications Branch, Department of Immigration and Border Protection, Canberra.
Last reviewed December 2013.

Last reviewed Friday 31 January 2014

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